Pubdate: Mon, 28 Feb 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: David Stout


WASHINGTON, Feb. 28 - About a decade ago, when the use of crack cocaine was
rampant in many cities, doctors and nurses at a hospital in Charleston,
S.C., agonized over what to do about pregnant women who showed signs of
using illegal drugs. The health care workers at the Medical University of
South Carolina, a public hospital that served many people from poor and
minority neighborhoods, decided in 1989 to do everything they could to stop
the women from hurting their fetuses, perhaps irreparably.

So if a urine test indicated cocaine use, the woman was arrested for giving
the drug to a minor - the child she was carrying. The policy was modified
to give drug-using women a choice between arrest and compulsory treatment
to shake their addiction.

The crack epidemic has since faded, the Charleston hospital has
discontinued its policy, but a basic issue has not gone away. Today, the
highest court in the land agreed to decide whether hospitals can legally
test pregnant patients for drug use and tell the police about those who
test positive. A ruling in the case, Ferguson vs. City of Charleston,
99-936, is expected next year.

The case's journey to the United States Supreme Court began in 1993, when
10 women sued the hospital, arguing that the urine testing - without
warrants - violated their Fourth Amendment right to be free of unreasonable
searches. A Federal District Court jury decided against the women, and last
year the United States Court of Appeals for the Fourth Circuit, in
Richmond, upheld the verdict.

The appeals court reasoned that the searches were minimally intrusive and
reasonable under a "special needs" exception to the Fourth Amendment
created by the danger to fetuses as well as the loss of public money
because of crack use.

The Supreme Court has declined before to review such prosecutions, which
have been undertaken in at least 30 states against women suspected of using
drugs or, in some cases, alcohol, during pregnancy. State high courts in
Florida, Kentucky, Nevada and Ohio and Wisconsin have disallowed them,
usually on the basis that a fetus was not a person under the particular
criminal statute at hand. In so ruling, the state courts sidestepped more
fundamental constitutional issues.

But in the fall of 1997, the South Carolina Supreme Court ruled, three to
two, that such prosecutions were allowed, and that a fetus was a person
under the state's child-abuse laws.

So now the United States Supreme Court will rule on a policy that a
hospital discontinued several years ago. And given the unpredictable course
of drug addiction in the United States, no one can say whether the issue is
purely academic.
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