DRUG TESTS ON PREGNANT WOMEN WITHOUT CONSENT RULED ILLEGAL

Hospitals that secretly test pregnant women for drug use without a search
warrant and then turn over the results to law enforcement are committing an
illegal search, the U.S. Supreme Court said yesterday.

The justices, in a 6-3 decision, ruled that South Carolina doctors and
nurses violated the Constitution's Fourth Amendment protection against
unreasonable searches when they tested the blood of 30 pregnant women for
illegal drugs without their permission.

The women clearly had a "reasonable expectation of privacy," said Justice
John Paul Stephens, who wrote the majority opinion.

Civil libertarians, women's rights groups and criminal defense lawyers
praised the decision as a "major victory for privacy rights."

Legal experts said the high court's decision -- combined with other recent
rulings -- shows that a majority of the justices are not willing to give
government much leeway to intrude into people's lives, even when the intent
is for the public good.

"The Supreme Court is showing a fairly heightened respect for individual
rights when it comes to illegal searches and seizures," said Atlanta lawyer
Don Samuel, a criminal law expert.

The case arose after a public hospital in Charleston, S.C., created a
program in 1989 with local prosecutors to test pregnant women for cocaine
use. The hospital had seen an increase in the number of crack-addicted
babies born in the late 1980s.

Over a four-year period, 30 women -- all poor and 29 of them black --
tested positive. The results were given to police who charged the women for
cocaine possession. Some of the women were arrested and handcuffed while
still wearing hospital gowns and bleeding from delivery. Prosecutors gave
the women a choice: complete drug treatment or go to jail.

In 1993, 10 of the women sued, alleging the program violated their right
against unreasonable searches. The 4th U.S. Circuit Court of Appeals
rejected that argument.

That lower court said that attempts by hospital officials and prosecutors
to protect the unborn constituted a "special need" and thus warranted
police searches without consent or a warrant.

Since 1985, the Supreme Court has allowed government agencies to conduct
searches for drugs without a search warrant in specific circumstances where
public safety or other special needs are at issue. For example, the
justices said that testing airplane pilots or heavy machinery operators for
drug use is acceptable.

Those decisions, according to Southern Methodist University law professor
Bill Bridge, provided some state and local law enforcement agencies the
impetus to sidestep traditional search and seizure standards.

Bridge said, however, that the South Carolina decision sends a message that
"governments do not have carte blanche to trump the Fourth Amendment."

He pointed to other Supreme Court rulings in the past three years in which
the justices have banned random roadblocks to hunt for illegal drugs,
outlawed mandatory drug testing of political candidates and prohibited
police from "touching" suit cases in vehicles to test for anything suspicious.

In the Charleston case, Justice Stephens agreed that "the ultimate goal of
the program may well have been to get the women in question into substance
abuse treatment and off of drugs."

The problem, he said, was that the program "was designed to obtain evidence
of criminal conduct" that would automatically "be turned over to the police
and that could be admissible in subsequent criminal prosecutions."

Justices Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg, Stephen
G. Breyer and Anthony M. Kennedy agreed with Stephens' opinion.

In a dissent, Justice Antonin Scalia wrote that the primary issue for
physicians is the welfare of the mother and child. The fact the doctors
also think about calling police when they see evidence of illegal conduct
"should make no difference," he wrote.

As a result of yesterday's ruling, the case, Ferguson v. Charleston, No.
99-936, returns to the lower federal courts to determine if the women gave
their legal consent to have their blood tested and the results turned over
to police.