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 Website: http://www.nytimes.com/ Forum: http://www10.nytimes.com/comment/ Author: Linda Greenhouse PROGRAM OF DRUG-TESTING PREGNANT WOMEN DRAWS A REVIEW BY THE SUPREME COURT 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. - --- MAP posted-by: Jo-D