Pubdate: Tue, 29 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: Linda Greenhouse


WASHINGTON, Feb. 28 - The Supreme Court agreed today to decide whether a
South Carolina public hospital conducted unconstitutional searches when it
tested pregnant women's urine for drugs so it could report illegal drug use
to the police.

The case is an appeal on behalf of 10 women who sued after being arrested
as a result of the policy, some while they were still weak and bleeding
from childbirth. It presents the Supreme Court a narrow but important
aspect of a legal and public policy debate that began in the peak years of
the crack epidemic of the 1980's: the extent to which a state may intervene
to protect fetal health, and the circumstances under which pregnant women
may be held criminally responsible for behavior that endangers their fetuses.

A federal appeals court ruled last year that while the urinalysis was a
search, it was not unconstitutional because it was justified by "a special
need beyond normal law-enforcement goals," namely protecting the health and
safety of fetuses and newborn babies.

In their appeal, lawyers for the women are arguing that this conclusion
amounts to a drastic expansion of what the Supreme Court has previously
treated as a "special-needs exception" to the Fourth Amendment's
prohibition against unreasonable searches.

"Nearly every application of the criminal law serves some health or safety
purpose" and so could be placed outside the protection of the Fourth
Amendment under this approach, the women's brief said.

The appeal is supported by a coalition of public health groups, which told
the justices that women who need prenatal care the most will be deterred
from seeking it if their drug abuse is treated not as a medical problem but
as a criminal one.

None of the women who filed the lawsuit were actually prosecuted, and the
particular program they are challenging ended in the mid-1990's, after
suits were filed and the United States Department of Health and Human
Services began an investigation.

However, Lynn Paltrow, one of the plaintiffs' lawyers and director of
National Advocates for Pregnant Women, a program of the Women's Law Project
in Philadelphia, said today that drug testing of pregnant women remained
widespread in South Carolina under the State Supreme Court's interpretation
of the state child endangerment law as applying not only to children but
also to viable fetuses. The United States Supreme Court refused two years
ago to review that state court interpretation.

"No other state has gone as far as South Carolina," Ms. Paltrow said in an
interview, adding: "No other state has made it a crime to be pregnant and
addicted. These women had a health problem and needed medical care, but
they were taken to jail."

The lead plaintiff in the case, Crystal M. Ferguson, tested positive for
cocaine during a prenatal visit to the hospital at the Medical University
of South Carolina, in Charleston, in June 1991. She agreed to attend a drug
abuse counseling program, but tested positive again when she gave birth in
August. She was arrested three days later.

According to the city's statistics, 30 women were arrested under the
program. Charges against all but two were dropped when the women entered
treatment. Some of the women were taken from their hospital rooms in
handcuffs or leg shackles. The plaintiffs are seeking damages and an
injunction against future drug testing.

Analytically, the case is quite similar to a Fourth Amendment case the
Supreme Court accepted for review last week, on whether police checkpoints
that subject motorists to drug-detecting dogs are constitutional. The lower
court in that case, Indianapolis v. Edmond, rejected the government's
argument that the need to detect and deter drug trafficking was a "special
need" that justified the warrantless searches.

In the new case, Ferguson v. City of Charleston, No. 99-936, the city
asserts that the hospital adopted its policy, in cooperation with the
police and the local prosecutor's office, in 1989 in the face of "an
epidemic of cocaine use" among its maternity patients.

"The clinical necessity for the drug screens, the health problems
associated with maternal cocaine use and the astronomical economic costs of
caring for infants suffering from the effects of cocaine use by their
mothers all created special needs beyond normal law-enforcement goals," the
city maintains.

That was the analysis endorsed in a 2-to-1 decision by the United States
Court of Appeals for the Fourth Circuit, in Richmond, which affirmed a
jury's verdict in favor of the hospital.

The hospital did not test all its patients, instead singling out those it
regarded as most likely to be using drugs. The criteria included having
received no prenatal care, or care that was late or incomplete; displaying
certain physical symptoms; unexplained preterm labor, and known drug or
alcohol abuse in the past. Many of the public hospital's patients are poor
and black; of the 10 plaintiffs, nine are black and one is white.

As the crack epidemic hit its peak, states adopted varying approaches to
the issue of drug use by pregnant women. Because a number of state courts
ruled, unlike the South Carolina Supreme Court, that a fetus could not be
considered a child for purposes of prosecuting pregnant women under child
abuse laws, some prosecutors argued that mothers delivered illegal drugs to
their newborn babies through the umbilical cord during the brief moments
between birth and the cutting of the cord. A woman was convicted in Florida
under this theory in 1989, but the Florida Supreme Court overturned the
conviction three years later, ruling unanimously that when the State
Legislature made "delivery" of illegal drugs a crime, it did not
contemplate a prosecution of this sort.
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