DRUG TESTS OF PREGNANT WOMEN AT ISSUE

Supreme Court To Rule On Police Use Of Routine Hospital Examinations

WASHINGTON -- The Supreme Court agreed yesterday to rule on the
constitutionality of mandatory tests of pregnant women for drug use, then
notifying police if abuse is detected.

The case will take the court for the first time into the emotional
controversy over using criminal law to monitor women's conduct during
pregnancy.

At issue is a contentious alliance among a public hospital, police and
prosecutors in Charleston, S.C., that led to in-hospital arrests of pregnant
women who tested positive for drugs.

Some aspects of that program have been extended statewide, with hospitals
and clinics required to report women who fail the tests to child welfare
authorities. Arrests at hospitals are reported to have stopped but not
follow-up prosecutions.

With officials in Charleston initially taking the lead, prosecutors across
the state have made increasing use of child-abuse or neglect laws against
women who turn up at hospitals for pregnancy care then are detected to be
drug abusers. The prosecutors contend that the pregnant women have
intentionally endangered their fetuses by abusing drugs.

When the justices hold a hearing on the new case in October, they will not
focus on the constitutionality of charging the women. Two years ago, the
court declined to hear an appeal by two women prosecuted for child neglect
after testing positive for drugs.

Instead, the court will review the validity of gathering the evidence for
criminal prosecution by hospital drug tests -- especially when police have
no search warrant and the women are not told the test results will be passed
to police.

If the testing is struck down, prosecution would be more difficult and thus
less likely.

Over the past 11 years, the court has upheld a variety of mandatory
drug-testing programs related to public safety. It has never upheld a
program under which tests were used explicitly for criminal prosecutions,
though, and it has cast doubt on the constitutionality of doing so without a
warrant.

Among the specific issues the court will study is whether testing that is
done partly for medical reasons would be unconstitutional if the results are
handed over to police and prosecutors.

Lynn R. Paltrow, a New York City women's rights lawyer who has been
challenging the South Carolina alliance for six years, said that advocates
for pregnant women have no problem with urine testing, if the results are
kept confidential and are used to aid in treating the women.

At stake in the South Carolina case, she said, are "drug searches -- a joint
hospital-police policy of searching pregnant women for evidence of drug
abuse, to be turned over to the state for punishment, not for treatment."

Robert H. Hood, the attorney for the hospital and its staff, argued that the
institution is not a part of government and thus is not bound by the
Constitution's Fourth Amendment ban on unreasonable seizures.

But, in any event, Hood said, the women involved consented to having their
urine tested as a part of routine medical exams when they were treated at
the hospital.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., upheld the drug
testing, saying the aim of the program was to protect health and safety,
particularly of the fetuses the women were carrying.

The testing program was adopted, the appeals court said, after the staff at
the Medical University of South Carolina saw a sharp increase in pregnancies
affected by cocaine use.

Ten Charleston women who were arrested after testing positive for drugs at
the hospital appealed the case to the Supreme Court, arguing that the
appeals court approved "a radical extension" of drug-testing authority.

Those women sued the hospital, its trustees and several staff members, along
with the city of Charleston.