Pubdate: Thu, 05 Oct 2000
Source: Alameda Times-Star (CA)
Copyright: 2000 MediaNews Group, Inc. and ANG Newspapers
Contact:  66 Jack London Sq. Oakland, CA 94607


WASHINGTON -- Hearing a case in which women were arrested from their 
hospital beds, Supreme Court justices Wednesday vigorously debated whether 
hospitals can test pregnant women for drug use and turn the results over to 

"This is being done for medical purposes," suggested Justice Antonin 
Scalia. "The police didn't show up at the hospital and say, 'We'd like to 
find a way to bust your patients.'"

But Justice Ruth Bader Ginsburg said she did not see how arresting women 
after they gave birth would protect the fetus, the primary concern of a 
South Carolina public hospital. "I looked at the (hospital) consent form; 
it doesn't say anything about police," she said.

Women treated at the Medical University of South Carolina contend that the 
hospital's former cocaine-testing policy violated pregnant patients' 
privacy and their constitutional protection against unreasonable 
searches.Hospital-bed arrests

The women "were searched by their doctors for evidence of crimes and then 
arrested, seven of them right out of their hospital beds," said Priscilla 
Smith, the lawyer for the women who sued.

The hospital's attorney, Robert Hood, said the women were jailed "not only 
for the illegal use of the drug but for what they were doing to their 
child. ... We are trying to stop a woman from doing irreparable, major harm 
to her child in utero."

"Law enforcement was not the purpose of this thing at all," Hood added.

A federal appeals court upheld the tests as legitimate efforts to reduce 
crack cocaine use by pregnant women.

The Supreme Court's ruling, expected by July, could determine whether the 
hospital reinstates the policy or whether other hospitals consider adopting 
similar tactics.Fourth amendment issue

Ten women who sued the Charleston hospital in 1993 said testing pregnant 
women for drugs and giving the results to police violated the 
Constitution's Fourth Amendment, which generally requires that searches be 
authorized by court warrant or based on reasonable suspicion that a crime 
has been committed.

The justices questioned both sides closely.

Justice David H. Souter suggested to Smith that doctors might have "a 
special need to know" whether their patients are using drugs. But he also 
asked Hood whether doctors who reported positive test results had become 
agents of the police.

Scalia compared the hospital's policy to a requirement in many states that 
doctors tell police when they encounter evidence of a crime, such as a 
gunshot wound.

Justice Sandra Day O'Connor asked whether drug tests are routinely 
performed on pregnant women. "Absolutely not, your honor," said Smith, who 
added that the testing policy was initiated by the hospital but jointly 
drawn up by police and hospital officials.

There have been similar prosecutions in other states, but they occurred on 
a case-by-case basis and not through a hospital policy of turning drug 
tests over to police, said Janet Crepps of the Center for Reproductive Law 
and Policy, which is representing the 10 women. Most of those prosecutions 
were thrown out on grounds that state child-endangerment laws did not apply 
to fetuses, she said.

The American Medical Association, in a friend-of-the-court brief, said the 
hospital's policy was more likely to increase harm to fetuses by 
discouraging women from seeking medical care or disclosing drug use to 
their doctors.

The hospital began testing pregnant women for cocaine in 1989 and giving 
any positive results to police. Women found to be using illegal drugs were 
prosecuted under the state child-endangerment law.

In early 1990, the policy was changed to give drug-using patients a choice 
between being arrested or enrolling for drug treatment. The hospital later 
dropped the policy, but by then police had arrested 30 maternity patients.

A federal court jury upheld the testing policy, and the 4th U.S. Circuit 
Court of Appeals agreed in July 1999. The appeals court said the urine 
tests were "minimally intrusive" and that hospital officials had a 
substantial interest in reducing cocaine use by pregnant women.

The case is Ferguson v. City of Charleston, 99-936.
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