HIGH COURT HEARS DRUG CASE

Justices Debate Whether Hospital Can Test Pregnant Women, Alert Police

WASHINGTON -- Supreme Court justices Wednesday vigorously debated whether
hospitals can test pregnant women for drug use and turn the results over to
police.

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

But Justice Ruth Bader Ginsburg said she did not see how arresting women
after they gave birth would protect their children, the primary concern of
a South Carolina public hospital.

"I looked at the [hospital] consent form; it doesn't say anything about
police," she said.

Women treated at the Medical University of South Carolina contend that the
hospital's former cocaine-testing policy violated pregnant patients'
privacy and their constitutional protection against unreasonable searches.

The women "were searched by their doctors for evidence of crimes and then
arrested, seven of them right out of their hospital beds," said Priscilla
Smith, the lawyer for those who sued.

The hospital's attorney, Robert Hood, said the women were jailed "not only
for the illegal use of the drug but for what they were doing to their
child. ... We are trying to stop a woman from doing irreparable, major harm
to her child in utero."

A federal appeals court upheld the tests as legitimate efforts to reduce
crack cocaine use by pregnant women.

The Supreme Court's ruling, expected by July, could determine whether the
hospital reinstates the policy or whether other hospitals consider adopting
similar tactics.

Ten women who sued the Charleston hospital in 1993 said testing pregnant
women for drugs and giving the results to police violated the
Constitution's Fourth Amendment, which generally requires that searches be
authorized by court warrants or based on reasonable suspicions that a crime
has been committed.

Justice David H. Souter suggested to Ms. Smith that doctors might have "a
special need to know" whether their patients are using drugs. But he also
asked Mr. Hood whether doctors who reported positive test results had
become agents of the police.

Justice Scalia compared the hospital's policy to a requirement in many
states that doctors tell police when they encounter evidence of a crime,
such as a gunshot wound.

Ms. Smith, responding to a question from Justice Sandra Day O'Connor, said
drug tests are "absolutely not" routinely performed on pregnant women.

There have been similar prosecutions in other states, but they occurred on
a case-by-case basis, said Janet Crepps of the Center for Reproductive Law
and Policy, which is representing the 10 women. Most of those prosecutions
were thrown out on grounds that state child-endangerment laws did not apply
to fetuses, she said.

The American Medical Association, in a friend-of-the-court brief, said the
hospital's policy was more likely to increase harm to fetuses by
discouraging women from seeking medical care or disclosing drug use to
their doctors.

In a separate case Wednesday, the justices heard a dispute over a rule that
prohibits government-funded lawyers for the poor from helping clients
challenge the 1996 welfare-reform law.

The lawyers call the restriction an unconstitutional gag order. The Legal
Services Corp., which provides legal aid to the poor, and the Clinton
administration defended the rule.