JUSTICES CONSIDER LIMITS OF THE LEGAL RESPONSE TO RISKY BEHAVIOR BY
PREGNANT WOMEN

WASHINGTON, Oct. 4 - There was little dispute at the Supreme Court today
about what actually happened at the Medical University of South Carolina
during the height of the crack epidemic of the late 1980's: the
university's public hospital in Charleston tested the urine of selected
maternity patients and turned evidence of their cocaine use over to the
police. Thirty women were arrested, some taken from their hospital beds in
handcuffs directly after giving birth.

Rather, the dispute was over how to characterize those events. The question
was whether the drug tests, conducted without warrants and without
suspicion of individual wrongdoing, were unconstitutional searches.

The answer appeared to depend on whether the justices saw the case through
the prism of criminal law or of public health: whether the tests and
arrests constituted law enforcement in the service of medical care or
doctors serving as agents of the police.

"Law enforcement was not the purpose of this thing at all," Charleston's
lawyer, Robert H. Hood, told the justices. "All it did was help people get
off cocaine" and avoid "the tragedy of these pathetic babies coming into
the world," Mr. Hood added.

Priscilla J. Smith, the lawyer for 10 women who were arrested and sued the
city, accusing it of violating their constitutional rights, said that to
the contrary, "what happened here is that doctors used the promise of
confidentiality in the private doctor-patient relationship to obtain
information from their patients in order to turn it over to the police."
Ms. Smith added, "That's all they did, and when they did that, they had to
obtain a warrant."

The dueling characterizations mattered because the Supreme Court's
precedents have found that the Fourth Amendment's warrant requirement need
not apply when a search serves a "special need" beyond the normal needs of
law enforcement. Searches of students' purses or lockers by school
authorities serve the needs of school discipline, the court has ruled, for
example, and so do not require a warrant or probable cause. Drug testing of
transit workers for safety purposes falls in the same category, the court
has held.

In the Charleston case, a federal appeals court found that the urine tests
served a special public health purpose - protecting fetuses from being
exposed to drugs in the womb - that took them outside the Fourth
Amendment's requirements.

In the women's appeal of that ruling, the question for the Supreme Court is
a narrow one: did the tests, in the absence of warrants, violate the
Constitution? But it was clear from their questions that at least some of
the justices saw the case in a larger framework of the debate over what
steps society may take in response to risky behavior by pregnant women.

Justice Stephen G. Breyer told the city's lawyer that he had concluded from
the "massive data" presented in briefs on the plaintiffs' behalf that "this
program probably hurts more fetuses than it helps" by deterring women from
seeking prenatal care. "I see no data on the other side," Justice Breyer said.

The case, Ferguson v. City of Charleston, No. 99-936, is in fact unusually
one-sided in its presentation to the court. While dozens of medical, public
health and civil rights groups filed or joined briefs in support of the
women's appeal, not one friend-of-the-court brief was filed on the city's side.

Although there have been occasional prosecutions elsewhere involving
maternal drug use, including a Florida case charging a woman with
delivering drugs to her newborn baby through the umbilical cord, no other
city ever adopted Charleston's approach and no other city has come forward
to defend it. Charleston modified its program substantially after the women
brought their lawsuit and no longer makes arrests at the hospital. The case
is not moot, however, because the plaintiffs are still seeking damages.

Justice Ruth Bader Ginsburg, disputing the city's description of the
program as "preventive," told Mr. Hood that "I don't see a protective
purpose" because many of the women were arrested after their babies were
born. "Whatever was done, was done," Justice Ginsburg said. "I don't
understand the argument at all," she added. Justice Sandra Day O'Connor
also appeared unconvinced by the city's argument, telling Mr. Hood that the
program appeared too "tangled up with law enforcement" to fall within the
court's "special needs" exception to the warrant requirement.

Working in partnership with the police, the Charleston hospital initiated
the program and came up with criteria to identify the patients who would be
tested for drugs. Late or absent prenatal care and premature labor were
among the criteria.

Nearly all the women arrested, including 9 of the 10 plaintiffs in the
case, are black; while a racial discrimination claim was originally part of
the case, the lower courts rejected it, and that issue was not before the
court today.

Ms. Smith, the plaintiffs' lawyer, said today that the criteria used to
select the women reflected poverty, not drug use, and led to arbitrary
selections. Some justices asked the city's lawyer why the program had been
used only in the public hospital, which serves a largely poor, black
population. Mr. Hood said the other major hospital in Charleston had
declined to participate.

In upholding the program, the United States Court of Appeals for the Fourth
Circuit said the urine tests imposed only a minimal intrusion on the women.
Today, several justices noted that doctors commonly test pregnant patients'
urine for medical reasons and wondered aloud what practical difference an
additional test for drugs could make.

Ms. Smith, who is a lawyer for the Center for Reproductive Law and Policy,
in New York, said that drug tests were not routine and that doctors
performing them assume a police function. Answering questions from several
justices, she said doctors were free to test for drugs if during the normal
course of medical treatment they had a particular reason to think a patient
was using drugs. In the absence of an earlier arrangement with the police,
such a test would not violate the Constitution, she said.