PREGNANCY DRUG TESTING FACES HIGH COURT SCRUTINY

S.C. Case Pits Mom's Rights Against Fetus'

Washington -- About a decade ago, when the use of crack cocaine was rampant
in many cities, doctors and nurses at a hospital in Charleston, S.C.,
agonized over what to do about pregnant women who showed signs of using
illegal drugs.

The health care workers at the Medical University of South Carolina, a
public hospital that served many people from poor and minority
neighborhoods, decided in 1989 to do everything they could to stop the women
from hurting their fetuses, perhaps irreparably.

So if a urine test indicated cocaine use, the woman was arrested for giving
the drug to a minor --- the child she was carrying. The policy was modified
to give drug-using women a choice between arrest and compulsory treatment to
shake their addiction.

Monday, U.S. Supreme Court agreed to decide whether hospitals can legally
test pregnant patients for drug use and tell the police about those who test
positive. A ruling in the case, Ferguson v. City of Charleston, is expected
next year.

"On one level, the question before the court is whether pregnant women have
lesser constitutional rights than other Americans," said Simon Heller of the
Center for Reproductive Law and Policy, one of the lawyers representing 10
women who tested positive.

Some of the women were arrested "right out their hospital beds, still
bleeding from having given birth," he said, as the state used its
child-endangerment law to prosecute women who used illegal drugs while
pregnant.

Lynn Paltrow of the Women's Law Center, another lawyer for the women, called
the policy "bad medicine" because it might deter women from seeking prenatal
care.

South Carolina Attorney General Charlie Condon said the case will not halt
the state's efforts. "South Carolina's policy of protecting unborn children
from their mothers' cocaine abuse will continue, even at public hospitals,"
he said. "Search warrants can be used as well as consents to search."

He added, "There is no constitutional right for a pregnant mother to use
drugs. The unborn child has a constitutional right to protection from its
mother's drug abuse."

The Charleston hospital discontinued its policy after a 1993 lawsuit was
filed, but police already had arrested 30 maternity patients.

The case's journey to the Supreme Court began in 1993, when 10 women sued
the hospital, arguing that the urine testing --- without warrants ---
violated their Fourth Amendment right to be free of unreasonable searches. A
U.S. District Court jury decided against the women, and last year the 4th
U.S. Circuit Court of Appeals in Richmond upheld the verdict.

The appeals court reasoned that the searches were minimally intrusive and
reasonable under a "special needs" exception to the Fourth Amendment created
by the danger to fetuses as well as the loss of public money because of
crack use.

The Supreme Court has declined before to review such cases, which have been
undertaken in at least 30 states against women suspected of using drugs or,
in some cases, alcohol, during pregnancy.

State high courts in Florida, Kentucky, Nevada, Ohio and Wisconsin have
rejected such prosecutions, usually on the basis that a fetus was not a
person under the particular criminal statute at hand. In so ruling, the
state courts sidestepped more fundamental constitutional issues.

But in the fall of 1997, the South Carolina Supreme Court ruled 3-2 that
such prosecutions were allowed, and that a fetus was a person under the
state's child-abuse laws.

So the U.S. Supreme Court will rule on a policy the hospital discontinued
several years ago, but no one can say whether the issue is academic.