U.S. SUPREME COURT ABORTS MUSC CASE

Decision Not To Hear Appeal Paves Way For Damages Lawsuit

There's a big difference between questions that begin with the words
"whether" and the words "how much." As in, "whether or not a person's at
fault in an auto accident," or "how much Allstate will have to shell out to
cover the damages."

As in "whether" a group of women were wronged beginning in 1989 when they
were arrested under state child endangerment laws at MUSC after testing
positive for cocaine in their bloodstreams while pregnant, and "how much"
they were wronged.

After the U.S. Supreme Court declined last week to hear the government's
latest and last appeal, functionally affirming a lower court's decision, it
became clear that the state had wronged the women. Now, it looks as though
MUSC and various state government agencies, after years of wrangling up and
down the state's and the nation's court systems, will get a chance to find
out the answer to the "how much" question.

Thirty pregnant MUSC patients were arrested between 1989 and 1993 under a
program whose policies did not include telling the women that some of the
blood being drawn from their veins was being diverted to a drug screening
test - much less that the test results would be turned over to law enforcement.

Charlie Condon, before a stint as the state's Attorney General and a failed
run at the governor's mansion, was in charge of the prosecution of the
women. Despite the Supreme Court's decision, getting him to say that the
government did anything wrong is no easy task.

"The purpose of the program was, and is, to help children and their mothers
avoid harm from using drugs - illegal and harmful drugs," he says from his
Mt. Pleasant office, where he now serves as general counsel and vice
president of a local insurance company. "When people look at the purpose,
it's one everyone can agree on; the difference is how to achieve those goals."

Critics of the program still puzzle the former 9th District Solicitor. "How
do they propose to deal with the situation, where the typical case is
someone who has had multiple opportunities to avail themselves of free drug
treatment?" He disagrees with his critics that "coerced" drug treatment
doesn't work, referencing the state's drug court system as a prime example,
where those sentenced must complete drug treatment or go to jail.

After some prodding, Condon admits that, in retrospect, there was room for
improvement in the program and its policies, as he sided with the Court
that the some of the language in the forms the women signed upon admission
was unclear. After further prodding, Condon concedes that the language
informing the women of the destination of their blood tests was not only
unclear, but wholly absent.

Yet and still, he holds to the mission of the program.

"As for children, we, as a society, owe them our best efforts to get their
[drug using/addicted] parents' attention, whether that be through threat of
arrest, or family members concerned enough to deal out some tough love. At
the end of the day, we have to figure out how to do this in a constructive,
legal, and proper manner to help break the cycle."

Susan Dunn, one of Condon's critics and one of the lawyers representing 10
of those women arrested for the past nine years, isn't going for Condon's
line of thinking.

"It would make some sense if the technique had any clinical basis," she
says, likening Condon's approach to giving iodine to a child for a cold
because iodine is good for the body in general.

She also rejects Condon's coerced-treatment-is-better-than-no-treatment
argument. "If all we had to do was to scare people shitless, then there'd
be no problems," she says from her peninsular office. "Jail is not a good
solution; it's documented as a failure. And why take the most vulnerable
people and experiment on them?"

Particular needs and particular situations should drive how drug-using
pregnant mothers are approached, according to Dunn. "And I am saying you
have to be very careful with a pregnant person; they are in a time-frame
limited situation.

"The way to deal with [drugs in the bloodstream] is to admit them to a
hospital or commit them. If it's a medical crisis, there are ways to deal
with that that don't violate the Constitution and require criminalization."
Jail, she says, has nothing to do with the leverage needed to get a
using/abusing mother's attention.

What will get the government's attention is how much it will have to pay in
legal damages to the remaining 10 women. At least one of Dunn's original
clients won't be there, having already succumbed to cancer.

The damages trial could be sent back down to a Charleston federal court as
soon as next month, Dunn said.

While the government has exhausted its Constitutional appeals as to
"whether" her clients were wronged, Dunn wouldn't be surprised if there
weren't at least one round of appeals to pay her legal bills. She estimates
her tab is hundreds of thousands of dollars, in front of the right judge
and the right jury.

For Cookie Washington, the president of the state chapter of the National
Organization of Women, as well as the women's advocate for nearly a decade,
it likely won't end there. Casting the issue as an ongoing reproductive
rights battle, like the one facing a woman currently residing in a South
Carolina jail for having suffered a miscarriage with cocaine in her
bloodstream, Washington sees the MUSC case as the first battle in an
ongoing war.

"I hope for the sake of all women in South Carolina, and for the sake of
their reproductive rights, that this case is settled in the clients'
favor," says Washington.