Pubdate: Thu, 05 Oct 2000
Source: San Diego Union Tribune (CA)
Copyright: 2000 Union-Tribune Publishing Co.
Contact:  PO Box 120191, San Diego, CA, 92112-0191
Fax: (619) 293-1440
Author: Steve Lash, Houston Chronicle


WASHINGTON -- Women arrested for cocaine use told the Supreme Court 
yesterday that hospital workers had no right to pass on to police the 
positive drug tests of pregnant patients.

But the city of Charleston, S.C., argued that such disclosure was necessary 
to stanch an "epidemic" of local women giving birth to deformed, 
drug-addicted babies.

The hourlong argument brought into sharp focus the public's often competing 
desires to be free from unreasonable police searches while demanding that 
law enforcement stop illegal drugs and the dangers they pose to public health.

Indicating that the balance should favor the women in this case, Justice 
David Souter expressed concern about trusted doctors becoming "agents of 
the police" in order to arrest drug users. But Justice Antonin Scalia said 
doctors have a duty to protect the public and often tell police about the 
crime victims they treat, such as abused children.

One Charleston hospital, in a purported effort to protect women and their 
unborn, began in 1989 to alert police to positive results from routine 
urine tests of expectant mothers. The policy, suspended in 1993, was 
implemented at a time when crack cocaine began afflicting primarily 
low-income communities.

Under the policy, the hospital notified the local prosecutor's office only 
after a woman failed a second drug test or declined -- after a first 
positive screening -- to attend drug-counseling sessions or prenatal 
medical appointments.

Women arrested under the policy could be charged with drug possession, 
child neglect or distributing drugs to a child. Under South Carolina law, a 
fetus is considered a child if the pregnancy has progressed to the point of 
viability, meaning when a fetus could survive outside the womb.

Lawyer Priscilla Smith, representing 10 women who tested positive, said 
Charleston's policy violates people's constitutional protection against 
unreasonable police searches when they are least able to assert their 
rights. Pregnant women and other patients place their trusts in doctors and 
expect them to keep details of medical treatment confidential and not share 
them with police, said Smith, of the New York City-based Center for 
Reproductive Law & Policy.

"The doctors used the promise of confidentiality" to help law enforcement 
catch drug users, she argued. "They took on the mantle of the police."

But Scalia expressed skepticism, saying that Charleston doctors and police 
were doing their jobs. Doctors as a matter of course tell police when 
patients present a risk to themselves or others, he said, noting that a 
pregnant drug user could harm herself and her fetus.

"It happens all the time that a doctor has to turn someone in," Scalia said.

Charleston's lawyer, Robert Hood, argued that the city's goal was not to 
arrest women but to discourage them from using drugs during pregnancy.

The city argued that about 15,000 babies in South Carolina in the late 
1980s annually suffered from prenatal exposure to illegal drugs, which 
causes damage to the brain, kidneys and reproductive system; increased risk 
of infant death; low birth weight; seizures; strokes; or heart attacks.

"We are trying to stop a woman from doing irreparable harm to her child in 
utero," Hood argued.

But if protecting the unborn is the policy's goal, Justice Ruth Bader 
Ginsburg asked, why were some of the women arrested only after they gave birth?

"You can't prevent anything when . . . the child is already born," Ginsburg 

Justice Stephen Breyer said the policy could actually exacerbate the 
problem of drug-addicted babies as many pregnant women would not seek 
medical help for fear of arrest.

The court is expected to render its decision in the case, Ferguson vs. 
Charleston, by July.

The 10 pregnant women who tested positive for cocaine use are suing the 
city, police and administrators at the Medical University of South Carolina 
Medical Center.

Nine of the women were arrested on narcotics-related charges but agreed to 
attend drug-treatment programs instead of facing prosecution. One woman was 
not arrested.

The 4th U.S. Circuit Court of Appeals ruled last year that Charleston's 
desire to protect the unborn superseded the women's Fourth Amendment 
protection against unreasonable police searches. They then appealed to the 
Supreme Court.
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