COURT FINDS NO CONSENT FOR DRUG TESTS

Eight women who sued the Medical University of South Carolina after the
hospital drug tested them and turned the results over to police did not
agree to the tests, a federal appeals court ruled Thursday. The decision is
the latest development in the nearly decade-old case that stems from the
hospital's attempts in the 1980s and early 1990s to reduce the crack baby
epidemic.

The case went all the way to the U.S. Supreme Court on appeal last year and
refined earlier court opinions involving the Fourth Amendment of the
Constitution, which protects against unreasonable searches and seizures
unless police have a search warrant or probable cause. The high court ruled
that the hospital's now-defunct policy violated the amendment, but it sent
the case back to the U.S. Fourth Circuit Court of Appeals in Richmond to
consider whether the maternity patients gave consent for the testing. A
three-judge panel ruled 2-1 Thursday that eight of the 10 women who sued
did not know they were being tested for cocaine and did not consent to the
testing. Two Charleston attorneys who argued on opposite sides of the case
disagreed Friday on the decision's meaning.

Attorney Susan Dunn, who represented the women, said her clients were
vindicated and now stand to win damage settlements when the lawsuit returns
to the U.S. District Court in Charleston, Dunn said Friday. "These are
people for whom even a modest settlement would be a big change in their
lives," Dunn said, adding that she also plans to seek reimbursement for
legal fees. Attorney Robert Hood, who represented MUSC, said he would
appeal the ruling and doubts it will lead to damage awards. "I can't
imagine a jury wanting to give money to a woman who took drugs while she
was pregnant." Fourth Circuit Appeals Court Judge William W. Wilkins Jr.
wrote "... we hold that no rational jury could conclude, from the evidence
presented at trial, that (the women) gave their informed consent to the
taking and testing of their urine for evidence of criminal activity for law
enforcement purposes. "It is certainly disheartening that, as a result of
our holding today, damages may be imposed on those who acted with the best
interests of the Appellants and their children at heart," Wilkins wrote.
The judges said two of the women who sued the hospital in 1993, saying the
policy was unconstitutional, either suffered no Fourth Amendment violation
or were not searched. "It's bittersweet," Dunn said. "I feel like the
mother of a whole lot of children, and not all of them were included in
this." The origin of the dispute dates back to the years between 1989 and
1994, when MUSC administered drug tests to some maternity patients - many
of them indigent - who sought prenatal care or gave birth at the hospital.
The hospital gave the results to Charleston police through a program
developed in conjunction with Attorney General Charlie Condon, then the 9th
Circuit Solicitor. "It doesn't stop our cocaine baby testing at all,"
Condon spokesman Robb McBurney said Friday. "This ruling in the end
probably makes it a stronger policy." McBurney said that after last year's
Supreme Court decision, the drug testing policy was changed to require
consent at public hospitals. "We can test pregnant women and compel them to
go to drug treatment because cocaine is illegal." MUSC ended the practice
after the federal government threatened to cut funding to the hospital.

While it was active, police arrested 30 women, some of them still in their
hospital beds, and jailed them under the state's child endangerment law.
"This was an insidious program that violated the patients' expectation of
confidentiality in the doctor-patient relationship," said Priscilla Smith,
an attorney who worked on the case for the New York-based Center for
Reproductive Law and Policy. "It's been a long road for these women, but at
long last they are vindicated."