SUPREME COURT ARGUMENTS ON A HOSPITAL THAT JOINED POLICE TO TEST PREGNANT
WOMEN FOR CRACK COCAINE USE AND HAVE THEM ARRESTED

ANCHORS: NOAH ADAMS; LINDA WERTHEIMER

REPORTERS: NINA TOTENBERG

NOAH ADAMS, host:

From NPR News, it's ALL THINGS CONSIDERED. I'm Noah Adams.

LINDA WERTHEIMER, host:

And I'm Linda Wertheimer.

Today the US Supreme Court heard arguments in a case with implications for
doctor-patient confidentiality, for the privacy of patient records and for
the future conduct of drug treatment programs. At issue is whether doctors
and nurses working with police can test pregnant women for drug use and
then, without the women's consent, turn the test results over to police.
NPR's Nina Totenberg reports.

NINA TOTENBERG reporting:

The case began in 1989 when a nurse in the obstetrics department at the
Medical University of South Carolina in Charleston learned that a prosecutor
in a nearby town was using the state's child abuse laws to prosecute women
for using crack cocaine during their pregnancies. She contacted police and
prosecutors in Charleston. Within two months, the hospital working with
police had in place a system to test pregnant women for crack cocaine and,
if they tested positive, to have them arrested.

The program was never adopted at any other hospital, only at the public
hospital, MUSC, which cares for many of the city's poorest residents.

In 1990, prosecutors altered the program to allow women to avoid arrest if
they enrolled in a treatment program. Four years later, though, the
hospital faced losing some $ 80 million in federal research money after the
National Institutes of Health concluded MUSC had violated its pregnant
patients' rights with the publication of a research paper based on the
tests, and the hospital abandoned the program in its entirety.

By then, it had tested 253 women. Of those, 30 had been sent to prison, 29
of them African-American. Ten of the women sued, claiming that the
non-consensual tests amounted to illegal searches of their bodies. A
federal appeals court in Richmond ruled that no warrant was required because
of the state's special need to protect unborn children. And the women
appealed to the US Supreme Court.

Today on the steps of the high court, Charles Condon, the prosecutor who
helped establish the testing program and now is South Carolina's state
attorney general, was adamant in defending the policy.

Mr. CHARLES CONDON (State Attorney General, South Carolina): There's one
voice you didn't hear from in the courtroom this morning. That's the voice
of the innocent children who have been horribly damaged by the use of
illegal drugs. The object of the policy has never been, and is not now,
maternal prosecution. The object is fetal protection.

TOTENBERG: But Priscilla Smith, representing the women, countered that the
real purpose of the policy was not treatment but punishment, and she noted
that four of her clients had been arrested after giving birth.

Ms. PRISCILLA SMITH (Attorney): In some cases, women were arrested out of
their beds, still bleeding and in pain from childbirth, OK? That's what
we're talking about here is the confidentiality of your medical records, the
private doctor-patient relationship and this does not help babies. This is
counterproductive. Ask Mr. Condon why every major medical group opposes
this policy. Ask him why we have 75 medical groups supporting us in amicus
briefs and he has zero.

TOTENBERG: But Robert Hood, the lawyer representing the city and hospital
officials, said the policy was fully justified.

Mr. ROBERT HOOD (Attorney): We got child abuse. And when we're talking
about a child, don't we want to keep that person from abusing that baby?
Don't we want that baby to come into this world and have a chance to be
normal rather than brain damaged, addicted or some other organ in the body
screwed up because the mother couldn't get off of cocaine?

TOTENBERG: Virtually every major medical organization in the country,
however, has weighed in on this case, citing studies that show cocaine is no
more harmful than other drugs, drugs that the hospital did not test for,
including liquor. Medical organizations from the AMA to the March of Dimes
uniformly contend that a policy like the one at MUSC will discourage women
from seeking medical help early in their pregnancies, a contention supported
on the courthouse steps today by one of the plaintiffs in the case, Paula
Hale.

Ms. PAULA HALE (Plaintiff): I never obtained prenatal care because I was in
fear of going to jail--continually going to jail. Because of the issue,
when I delivered, they tested me at the time of my delivery. My child
didn't have any cocaine side effects whatsoever. Came six pounds, 13 ounces.

TOTENBERG: Hale said that despite the fact her child was born healthy, she
was arrested afterward and held in prison for 28 days until this lawsuit was
filed. She adamantly denied that the MUSC program helped her, saying she
was unable to get off drugs until long after the program ended. State
officials defending the policy insists the program succeeded with 90 percent
of the women who tested positive. At the hospital, however, officials now
say that because the program was conducted without adequate scientific
controls, no conclusions can be drawn about whether it was effective.

Inside the courtroom, neither side had an easy time of it today. Lawyer
Priscilla Smith, representing the women, went first. Justice Souter: Isn't
there a special need for this testing? Doctors need to know because of the
risk to the fetus and the mother. Answer: The testing was legal for medical
purposes but not for law enforcement purposes.

Justice Ginsburg: Suppose instead of there being an arrest, the hospital had
turned the information over to the Social Services Department. Would that
have been a violation? Answer: No. That is what they did when women tested
positive for any other substance. That's what they did with heroin or
methamphetamines.

Justice Kennedy then focused on one of the critical Supreme Court cases
involving searches without a warrant, the court's decision allowing random
sobriety checkpoints on the highway. Why, he wanted to know, is the cocaine
testing program different? Answer: Because when you go to a doctor, you have
a greater expectation of privacy and the search is significantly more
intrusive. Justice Scalia: Many states require doctors to report all gunshot
wounds. How is that different? Answer: The testing here was not routine.
Particular groups of people were targeted and the criteria used to decide
whom to test were so general as to be subject to abuse. Justice Breyer: But
if you discover a crime in the course of treating a patient, you have an
obligation to tell the police. Isn't that what was happening here? Answer:
No. This isn't a case where a doctor came across evidence. Here they
joined with police; as soon as they became the agents of the police
searching for evidence of a crime, they had to comply with the same
constitutional rules for a search that the police did. In short, they
needed a warrant.

Defending the policy, lawyer Robert Hood faced equally difficult
questioning, especially after conceding that the policy of turning over drug
test results to police was only applied at MUSC. When he argued that the
policy was aimed at protecting the fetus, Justice Ginsburg interrupted: I
don't know how you can say that if the child is already born, and some of
these women were arrested after giving birth. Answer: This was child abuse.
Cocaine causes brain damage. Justice Ginsburg: Was there a determination
that any of these women, in fact, had children that were brain damaged?
Answer: We didn't do any studies. There was no time for follow-up. This
was a medical crisis, a true epidemic. Justice Stevens, sarcastically:
Apparently in only one hospital.

Justice O'Connor: What support in our precedence is there for allowing a
search without a warrant when the search is so tangled up with law
enforcement? Justice Breyer: If you have an uncontested turning over of
private information to police, you have to show something special about the
situation or you lose. Under the AMA's rules, you have to show that there
is a serious threat of harm to the patient or a third party. And, here,
said the justice, I just don't see how you could prevail given the mass of
data that contradicts you on how cocaine effects the fetus, especially when
you're dealing with someone who has had no prenatal care. Answer: Our child
abuse laws require doctors to report drug use just as they would a gunshot
wound.

Justice Ginsburg, softly: In that case, it seems then there were a lot of
doctors violating South Carolina's law since this was the only hospital
where doctors turned the information over to police.

A decision in the case is expected later this term. Nina Totenberg, NPR
News, Washington.

(Soundbite of music)

ADAMS: It's NPR, National Public Radio.