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 Website: http://www.nytimes.com/ Forum: http://forums.nytimes.com/comment/ Author: Linda Greenhouse JUSTICES CONSIDER LIMITS OF THE LEGAL RESPONSE TO RISKY BEHAVIOR BY PREGNANT WOMEN 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. - --- MAP posted-by: Larry Stevens