JUSTICES REINFORCE MEDICAL PRIVACY

Secret Drug Tests, Arrests Of Pregnant Women Illegal

WASHINGTON -- Public hospitals cannot join forces with police to test
pregnant women for cocaine use without their knowledge, the Supreme Court
ruled Wednesday in a key test of privacy rights.

Voting 6-3, the justices rejected arguments from the Medical University of
South Carolina and Charleston city officials that drug tests are necessary
to protect mothers and their fetuses from the damaging effects of crack
cocaine.

The ruling was a victory for 10 women who sued after being arrested during
their pregnancy or just after giving birth. They were backed by civil
liberties and women's rights groups that say the policy compromised medical
privacy.

The case was one of the most closely watched this term, pitting the rights
of pregnant women against government efforts to safeguard fetal health and
going to the heart of patient-physician relationships. It also raised
racial concerns because 29 of the 30 women arrested under the policy are black.

The legal effort to win monetary damages for invasion of privacy is not
over. The justices sent the case back to a lower court to determine whether
the women actually agreed to the tests that began in 1989 and were
suspended in 1993. (Their lawyers say they did not. The hospital's lawyer
says they consented when they filled out routine forms.)

The justices said that however well-intentioned, the drug tests were
unconstitutional without a search warrant or the women's consent. "While
the ultimate goal of the program may well have been to get the women . .
. into substance-abuse treatment," Justice John Paul Stevens wrote, the
objective of the searches "was to generate evidence" for police.

Stevens was joined by Justices Sandra Day O'Connor, David Souter, Ruth
Bader Ginsburg and Stephen Breyer. Justice Anthony Kennedy agreed with the
judgment but differed in his rationale. Dissenting were Chief Justice
William Rehnquist and fellow conservatives Antonin Scalia and Clarence Thomas.

Under the Fourth Amendment, police generally need a warrant to conduct any
search, including urinalysis. But the court has allowed some exceptions for
governmental "special needs" beyond law enforcement, such as drug testing
for rail workers as a way to prevent train accidents.

Charleston prosecutors and hospital officials, citing the health problems
linked to maternal cocaine use, argued that the drug-screening program met
that standard. An appeals court in Richmond, Va., agreed.

The high court, however, said that police and prosecutors played too great
a role in Charleston's policy and that, unlike prior cases in which
exceptions were allowed, the privacy invasion was substantial. Patients do
not expect their diagnostic tests to be shared with non-medical personnel,
Stevens said.

Scalia wrote for the dissenters that the law-enforcement objectives did not
undercut government's special need for a drug-screening policy. He
emphasized that doctors and nurses did the testing and sought to refer
pregnant addicts to treatment.

Stevens noted that while the justices decided the case based on the
presumption that the women who were tested did not agree to the screening,
there was still a lingering question on that matter. So the case now
returns to the U.S. Court of Appeals for the 4th Circuit, where Charleston
officials will argue that the women consented on hospital admission forms.

Robert Hood, lawyer for the city and state public hospital, said officials
ultimately would prevail and emphasized the need "to prevent abuse" of fetuses.

Priscilla Smith of the New York-based Center for Reproductive Law and
Policy, who represented the women before the high court, said the decision
showed that "pregnant women have the same constitutional rights as other
Americans, including the right to maintain a confidential doctor-patient
relationship."

Advocates for the women say the ruling helps their argument that the
patients never agreed to the urine screening.

Stevens wrote that "while state hospital employees . . . may have a duty
to provide the police with evidence of criminal conduct that they
inadvertently acquire in the course of routine treatment, when they
undertake to obtain such evidence from their patients for the specific
purpose of incriminating those patients, they have a special obligation to
make sure that the patients are fully informed."

Wednesday's case is the latest in a string of decisions since 1989 to
define when urine testing by governments is allowed without a warrant or
suspicion of wrongdoing. Charleston officials compared their drug testing
to rulings permitting them for railway workers, U.S. Customs Service
employees in sensitive positions and junior high school athletes.

The justices said they couldn't accept Charleston's stated purpose --
protecting the health of mother and child -- at face value. "The purpose
actually served by the (drug testing) is ultimately indistinguishable from
the general interest in crime control," Stevens said. That makes all the
difference, he said.

In the earlier cases involving rail workers and Customs agents, the court
cited public safety concerns. In the student athletes' case, the court
cited efforts to deter drug use among students and prevent sports injuries.
It also emphasized that students lack the fundamental rights of adults.