JUSTICES SKEPTICAL OF TESTING PREGNANT WOMEN FOR DRUGS

WASHINGTON - A Program To Test Some Women For Drugs Made Doctors
"Agents Of The Police," Justice David Souter Says.

Once again trying to define the limits on warrantless drug searches,
the Supreme Court Wednesday heard arguments about a South Carolina
hospital's policy of testing certain pregnant women for cocaine use,
then giving results to police without the patients' consent.

The case, Ferguson vs. city of Charleston, stems from a policy
developed by the Medical University of South Carolina in cooperation
with Charleston police.

When the program began in 1989, women were tested and arrested right
after giving birth. The policy later evolved to give women a choice
between treatment or arrest for "delivering drugs to a minor." It was
discontinued in 1993.

In oral arguments Wednesday, Robert H. Hood, lawyer for the public
hospital and city officials, said the urine testing was necessary not
only as part of the woman's medical care but "to stop a woman from
doing irreparable harm to her fetus."

Justice Ruth Bader Ginsberg curtly responded: "I don't understand that
argument at all after the child is born. ... So I don't see a
protective purpose" when the policy began.

Justice David Souter commented that, under the policy, "doctors, in
effect had become agents of the Police."

In contrast, Justice Antonin Scalia seemed sympathetic to the
hospital's efforts.

"This is being done for medical purposes," Scalia said. "The police
didn't just show up at the hospital and say, 'We'd like to find away
to bust your patients.' "

The Fourth Amendment requires police to have a warrant and "probable
cause" to conduct a search without a suspect's consent. But the
Supreme Court has recognized exceptions for "special governmental needs."

For example, employers may conduct drug tests of certain public
employees, such as customs agents who carry guns.

The 4th- Circuit Court of Appeals upheld the hospital's urine-testing
policy, saying it served the "special need" of protecting fetuses and
newborns.

Stressing that protection theme, Hood declared that "these babies were
being born with brain damage." But when Ginsberg demanded to know
where that fact appeared in court documents, the city's lawyer
conceded it was not a fact.

Justice Stephen Breyer, commenting on the city's contention that
cocaine exposure in the womb causes long-term damage, said, "I've come
to the conclusion ... the studies... are pretty inconclusive."'

Breyer also asked Hood how the hospital could claim that threatening
pregnant, women with arrest helped their fetuses when dozens of
medical organizations had filed briefs in the case saying such
punitive approaches scare addicts away from getting prenatal care.

"This kind of program probably hurts more fetuses than it helps,"
Breyer said.

Priscilla Smith of the Center for Reproductive Law and Policy in New
York, representing the 10 women who brought the lawsuit, was pressed
to explain why doctors should not test women they, suspect of abusing
cocaine.

Smith distinguished between testing that helps medical or social
service professionals do their jobs and testing to send women to jail.

"Doctors used the promise of confidentiality ... to obtain information
from their patients in order to turn it over to the police," she said.
"And when they took on the mantle of the police, they had to obtain a
warrant."

During the so-called crack epidemic of the late 1980s, many states
brought prosecutions against women who used cocaine during pregnancy.
But only in South Carolina has the state's highest court upheld such a
prosecution, ruling that a viable fetus is a "person" under the
state's child-endangerment law, and that a woman could be charged with
endangerment for any behavior, legal or illegal, that harmed the fetus.

Hood said the urine-testing policy was needed to combat "a true
epidemic of cocaine abuse."

Several justices questioned why only this hospital, which largely
serves poor and black patients, adopted the policy.

All but one of the 30 women who were arrested were black, according to
court documents.

The court's ruling on the case is expected next year.