Pubdate: Wed, 04 Oct 2000
Source: New York Times (NY)
Copyright: 2000 The New York Times Company
Contact:  229 West 43rd Street, New York, NY 10036
Fax: (212) 556-3622
Author: Linda Greenhouse


WASHINGTON, Oct. 4 - There was little dispute at the Supreme Court today 
about what actually happened at the Medical University of South Carolina 
during the height of the crack epidemic of the late 1980's: the 
university's public hospital in Charleston tested the urine of selected 
maternity patients and turned evidence of their cocaine use over to the 
police. Thirty women were arrested, some taken from their hospital beds in 
handcuffs directly after giving birth.

Rather, the dispute was over how to characterize those events. The question 
was whether the drug tests, conducted without warrants and without 
suspicion of individual wrongdoing, were unconstitutional searches.

The answer appeared to depend on whether the justices saw the case through 
the prism of criminal law or of public health: whether the tests and 
arrests constituted law enforcement in the service of medical care or 
doctors serving as agents of the police.

"Law enforcement was not the purpose of this thing at all," Charleston's 
lawyer, Robert H. Hood, told the justices. "All it did was help people get 
off cocaine" and avoid "the tragedy of these pathetic babies coming into 
the world," Mr. Hood added.

Priscilla J. Smith, the lawyer for 10 women who were arrested and sued the 
city, accusing it of violating their constitutional rights, said that to 
the contrary, "what happened here is that doctors used the promise of 
confidentiality in the private doctor-patient relationship to obtain 
information from their patients in order to turn it over to the police." 
Ms. Smith added, "That's all they did, and when they did that, they had to 
obtain a warrant."

The dueling characterizations mattered because the Supreme Court's 
precedents have found that the Fourth Amendment's warrant requirement need 
not apply when a search serves a "special need" beyond the normal needs of 
law enforcement. Searches of students' purses or lockers by school 
authorities serve the needs of school discipline, the court has ruled, for 
example, and so do not require a warrant or probable cause. Drug testing of 
transit workers for safety purposes falls in the same category, the court 
has held.

In the Charleston case, a federal appeals court found that the urine tests 
served a special public health purpose - protecting fetuses from being 
exposed to drugs in the womb - that took them outside the Fourth 
Amendment's requirements.

In the women's appeal of that ruling, the question for the Supreme Court is 
a narrow one: did the tests, in the absence of warrants, violate the 
Constitution? But it was clear from their questions that at least some of 
the justices saw the case in a larger framework of the debate over what 
steps society may take in response to risky behavior by pregnant women.

Justice Stephen G. Breyer told the city's lawyer that he had concluded from 
the "massive data" presented in briefs on the plaintiffs' behalf that "this 
program probably hurts more fetuses than it helps" by deterring women from 
seeking prenatal care. "I see no data on the other side," Justice Breyer said.

The case, Ferguson v. City of Charleston, No. 99-936, is in fact unusually 
one-sided in its presentation to the court. While dozens of medical, public 
health and civil rights groups filed or joined briefs in support of the 
women's appeal, not one friend-of-the-court brief was filed on the city's side.

Although there have been occasional prosecutions elsewhere involving 
maternal drug use, including a Florida case charging a woman with 
delivering drugs to her newborn baby through the umbilical cord, no other 
city ever adopted Charleston's approach and no other city has come forward 
to defend it. Charleston modified its program substantially after the women 
brought their lawsuit and no longer makes arrests at the hospital. The case 
is not moot, however, because the plaintiffs are still seeking damages.

Justice Ruth Bader Ginsburg, disputing the city's description of the 
program as "preventive," told Mr. Hood that "I don't see a protective 
purpose" because many of the women were arrested after their babies were 
born. "Whatever was done, was done," Justice Ginsburg said. "I don't 
understand the argument at all," she added. Justice Sandra Day O'Connor 
also appeared unconvinced by the city's argument, telling Mr. Hood that the 
program appeared too "tangled up with law enforcement" to fall within the 
court's "special needs" exception to the warrant requirement.

Working in partnership with the police, the Charleston hospital initiated 
the program and came up with criteria to identify the patients who would be 
tested for drugs. Late or absent prenatal care and premature labor were 
among the criteria.

Nearly all the women arrested, including 9 of the 10 plaintiffs in the 
case, are black; while a racial discrimination claim was originally part of 
the case, the lower courts rejected it, and that issue was not before the 
court today.

Ms. Smith, the plaintiffs' lawyer, said today that the criteria used to 
select the women reflected poverty, not drug use, and led to arbitrary 
selections. Some justices asked the city's lawyer why the program had been 
used only in the public hospital, which serves a largely poor, black 
population. Mr. Hood said the other major hospital in Charleston had 
declined to participate.

In upholding the program, the United States Court of Appeals for the Fourth 
Circuit said the urine tests imposed only a minimal intrusion on the women. 
Today, several justices noted that doctors commonly test pregnant patients' 
urine for medical reasons and wondered aloud what practical difference an 
additional test for drugs could make.

Ms. Smith, who is a lawyer for the Center for Reproductive Law and Policy, 
in New York, said that drug tests were not routine and that doctors 
performing them assume a police function. Answering questions from several 
justices, she said doctors were free to test for drugs if during the normal 
course of medical treatment they had a particular reason to think a patient 
was using drugs. In the absence of an earlier arrangement with the police, 
such a test would not violate the Constitution, she said.
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