COURT HEARS DRUG-TEST ARGUMENTS

The Supreme Court held a spirited, sometimes heated argument yesterday on
the question of whether the Constitution permits a public hospital to send
pregnant women who test positive for cocaine to law enforcement authorities.

At issue in Ferguson v. City of Charleston is a policy under which the
Medical University of South Carolina administered drug tests to pregnant
women without a search warrant and then forwarded some positive results to
the police.

A victory for the women could indicate that the court is growing reluctant
to add to the list of governmental "special needs" that may justify
warrantless searches. A victory for the city, however, might considerably
expand that doctrine.

"If [the women] lose, it means that if [authorities] want to do anything
with a benevolent motive, it's okay," said Prof. Susan Herman of Brooklyn
Law School.

The case has aroused strong feelings not only because of its potential
practical effects on police powers, but also because it touches on
questions of racial discrimination and the legal status of fetal life.

The hospital's patient population is overwhelmingly poor and African
American. All but one of the women arrested under the policy were black.
Mothers who tested positive faced charges not only because cocaine use
itself is illegal, but also because, under South Carolina law, a viable
fetus is considered a "person," and a woman who takes cocaine while
pregnant may be considered to have distributed illegal drugs to a minor, or
to have committed child abuse.

In 1993, 10 women whose drug test results were given to law
enforcement--including nine who were arrested, but not prosecuted--sued in
federal court, claiming, in part, that the policy violated the Fourth
Amendment's prohibition against unreasonable searches.

Federal district and appellate courts ruled in favor of Charleston. The
Richmond-based 4th U.S. Circuit Court of Appeals held that the policy was
justified under the "special needs" exception to the Fourth Amendment,
concluding that the urine tests were "minimally intrusive" and that
hospital officials had a substantial interest in reducing cocaine use by
pregnant women.

The hospital devised the policy in 1989 with the cooperation of local
police and prosecutors. Robert H. Hood, Charleston's attorney, insisted
that the intent of the policy--which was eventually modified to offer drug
treatment as an alternative to arrest--was not to punish women, but to save
them and their children from medical harm.

Hood said the same criteria for deciding which mothers to test were applied
to all patients, regardless of race.

But attorneys for the women, who are supported by a host of medical and
public health organizations, including South Carolina's state physicians'
and nurses' associations, contend that the threat of arrest would deter
women from seeking prenatal care at the hospital. That would defeat the
policy's declared purpose and remove any conceivable "special need" that
could justify an exception to the Fourth Amendment.

"If the real interest here is producing healthy babies and healthy
pregnancies, then criminal prosecution is not what works," said Priscilla
Smith, an attorney for the Center for Reproductive Law and Policy who
represented the women before the court yesterday.

Originally, the women who sued to stop the policy also contended that it
was selectively enforced against African American women. That claim did not
survive in the district court, where a jury found that the women had signed
valid consent forms agreeing to the tests.

But in yesterday's arguments, Smith noted that Charleston authorities had
"set out to test certain people, in a certain area," and some justices
seemed to share her implicit suspicion of the policy's impact on poor
minorities.

Justice John Paul Stevens repeatedly noted that the policy was carried out
in only one of Charleston's hospitals. "Was there ever any effort to extend
the policy to other hospitals?" Stevens asked Hood, who acknowledged that
there had not been.

A high-profile Supreme Court decision upholding the Charleston policy might
be viewed as a green light by other jurisdictions that want to experiment
with similar measures to fight drug abuse and protect fetal life, some
legal analysts said.

"This is an area where you'll see more legislatures try to wrestle with
this," said Richard Garnett, an assistant professor at Notre Dame Law School.

Hood said, however, that the doctors and management of the Charleston
hospital have no plans to revive the policy, which was suspended in 1993
when the lawsuit began.

Under a new state policy, cocaine-using pregnant women are turned over to
social services agencies, not police, he said.

"All they were was doctors trying to help women and they got sued for
money," he said. "So they said the hell with it."

In a second case yesterday, Legal Services Corp. v. Velazquez, the court
considered a 1996 law banning Legal Services Corp. lawyers from challenging
welfare reform statutes on behalf of their clients. A group of welfare
recipients claims that the law constitutes a restriction on lawyers' free
speech, because it necessarily discriminates against certain viewpoints.

In 1991, the court rejected similar arguments, holding that the government
may prevent doctors who receive federal funds from discussing abortion with
their patients.