SECRET PRENATAL DRUG TEST DEBATED

Justices To Weigh Rights In Searches

CHARLESTON, S.C. ­ Lori Griffin walked into a local public hospital in
October 1989 eight months pregnant thinking she was going into labor.

Doctors told the 36-year-old single mother of two that it was a false
alarm. Her symptoms, the doctors told her, were probably caused by the
stress of losing her job and home ­ all because of Hurricane Hugo a week
before.

What happened next resulted in a 12-year legal battle that has reached the
U.S. Supreme Court.

Without telling Ms. Griffin, hospital officials tested her urine for
illegal drugs, found cocaine in her system and summoned police. Two
uniformed officers placed her in handcuffs and shackles, told her she was
under arrest for distributing cocaine to a minor and took her to jail. She
had no criminal record and, in fact, had never been arrested. And drug
charges against her subsequently were dropped.

"I didn't give my permission for these tests to be done," she told the
South Carolina judge who ordered her held in a jail cell until she gave
birth 18 days later at a hospital. "Do doctors have the right to do it anyway?"

A dozen years later, Ms. Griffin and nine other women who faced similar
treatment are waiting for the court to answer that question.

The justices will decide in the next few months whether hospital officials,
in concert with police, in effect conducted illegal searches.

Priscilla Smith, the attorney for Ms. Griffin, says that Ms. Griffin's
child was born healthy. She also says the babies born to the other women
arrested were born with no problems linked to drug use.

The tests did not meet any of the basic requirements for searches under the
Fourth Amendment's ban on unreasonable searches, the women contend.

The women say that physicians at the Medical University of South Carolina
conducted secret drug tests on them and hundreds of other pregnant women
without obtaining consent, without getting a warrant and without having
probable cause.

Hospital officials and prosecutors counter that the public and government's
interest in ensuring that babies are born drug-free and healthy supersedes
the women's right of privacy.

Who has the rights?

Legal experts say the case, which has been hotly debated among
public-health officials, prosecutors, civil libertarians and
abortion-rights groups, could open or shut the door to more government
oversight of how women behave while they are pregnant.

The case presents an array of legal issues:

• Government interests vs. privacy rights.

• A woman's right to control her body vs. a child's best interest.

• The war on drugs vs. confidential doctor-patient relationships.

Legal scholars agree that this case provides the justices the opportunity
to clarify just how intrusive government can be in pursuing the greater
public good."This is a case that not only has a huge legal and
constitutional impact," says Cornell University law professor Stephen
Clymer, "but it provokes so many emotional and personal feelings, too."

Charleston hospital officials and law enforcement developed the prenatal
testing policy in 1989 in response to the growing problem of drug addicts
giving birth to crack-addicted babies.

Physicians say they used the urine tests to identify the women with drug
problems and brought in the police to force women to get treatment or face
the prospect of going to jail.

"It's the carrot-and-stick approach," says Robert Hood, an attorney
representing the Medical University of South Carolina, the hospital where
the women were treated and then arrested. "We are trying to stop a woman
from doing irreparable harm to her child in utero."

The hospital suspended the policy in 1994, citing the pending litigation.
Officials say the program probably will resume if the Supreme Court finds
their methods valid.

During the program's five years, 253 women tested positive for cocaine.
Most were presented an option: successfully complete drug treatment or go
to jail.

Thirty women were actually arrested ­ 29 of them were black. Only two women
were ever convicted. They were sentenced to treatment, not prison.
Attorneys assert that racial profiling did not occur but that women were
randomly selected by their economic status.

To pass constitutional muster, Charleston officials must show that their
drug-testing policy addresses a "special need" or important government
concern that is not law enforcement related.

In a series of decisions since 1989, the Supreme Court has permitted police
or other government agencies to conduct searches without warrants if the
objective is some greater societal good.

For example, they have permitted roadblocks searching for drunken drivers
and drug testing of public school bus drivers.

Mr. Hood says that the program was designed to "stem the tide of an
epidemic" caused by pregnant women using cocaine. He says the social and
economic costs of the problem required immediate government action.

In 1993, Ms. Griffin and nine other women sued the city hospital, claiming
their civil rights had been violated.

Some of the women were arrested prior to giving birth and detained until
they delivered, according to the lawsuit. Others were arrested minutes
after giving birth. They were handcuffed, shackled and taken to jail still
wearing their hospital gown.

"I had just had a baby," says Sandra Powell, one of the women in the
lawsuit. "I was still bleeding, still in pain when they came to haul me away."

Ms. Smith, who represents all 10 women, says the policy "transforms a
doctor visit into a police sting operation." She says none of the women
consented to the drug test nor were they presented with search warrants.

"These doctors were acting as agents of the police when they searched my
clients looking for evidence of crimes," says Ms. Smith, who is director of
litigation at the Center for Reproductive Law and Policy in New York.

Many legal experts believe that the Supreme Court will use this case to
more narrowly define the parameters under which government agents can usurp
people's privacy rights in pursuit of a special public need. The problem,
they say, is that the "special needs" exemption to the Fourth Amendment has
been undefined, allowing law enforcement to interpret it broadly.

Another concern, lawyers say, is whether threatening pregnant women with
prosecution is actually effective.

The American Medical Association and a dozen other public health
organizations have filed briefs in the case, saying the Charleston program
actually discourages women from seeking prenatal care if they think their
test results will be turned over to police.

During the past decade, there have been hundreds of efforts by law
enforcement and social workers across the country to punish women who used
drugs, alcohol or tobacco during their pregnancy.

In Texas, however, an appeals court ruled in 1994 that women can't be
prosecuted for passing drugs to fetuses through the umbilical cord because
no state law makes that a crime. The court did not address whether such a
law would be unconstitutional.

While Charleston officials are quick to note that they have not sent anyone
to prison under their program, that cannot be said for other parts of South
Carolina.

In 1998, the South Carolina Supreme Court ruled that a live fetus older
than 24 weeks is officially a person.

The state justices said that if a woman uses cocaine during the third
trimester of pregnancy, she is technically "distributing an illegal
substance" to her unborn child through the umbilical cord. That act, they
said, would violate state drug laws.

In response, South Carolina Attorney General Charles Condon instructed
doctors statewide to report to police any evidence that they uncover of
illegal drug use by patients. Dozens of prosecutions have resulted, with a
handful of women being sent to prison for up to three years.

In Myrtle Beach, a young woman is scheduled to stand trial this spring on
murder charges after she giving birth to a still-born child last year.
Doctors say the mother tested positive for cocaine at delivery. They say
her drug use could be partially to blame for the death of the unborn child.

"If you refuse drug treatment and continue to use cocaine and continue to
hurt babies, then we have a jail cell waiting for you," Mr. Condon says.

Ms. Griffin and her lawyers say it is that attitude that proves their point
that the drug tests are more about law enforcement than public health.

"The doctors and nurses were more interested in helping police than helping
me," says Ms. Griffin, who works six days a week at a Charleston dry
cleaning store. "Because of this, I will never trust a doctor again."