Pubdate: Tue, 29 Feb 2000 Source: Atlanta Journal-Constitution (GA) Copyright: 2000 Cox Interactive Media. Contact: http://www.accessatlanta.com/ajc/ Forum: http://www.accessatlanta.com/community/forums/ PREGNANCY DRUG TESTING FACES HIGH COURT SCRUTINY S.C. Case Pits Mom's Rights Against Fetus' Washington -- 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. Monday, U.S. Supreme Court 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 v. City of Charleston, is expected next year. "On one level, the question before the court is whether pregnant women have lesser constitutional rights than other Americans," said Simon Heller of the Center for Reproductive Law and Policy, one of the lawyers representing 10 women who tested positive. Some of the women were arrested "right out their hospital beds, still bleeding from having given birth," he said, as the state used its child-endangerment law to prosecute women who used illegal drugs while pregnant. Lynn Paltrow of the Women's Law Center, another lawyer for the women, called the policy "bad medicine" because it might deter women from seeking prenatal care. South Carolina Attorney General Charlie Condon said the case will not halt the state's efforts. "South Carolina's policy of protecting unborn children from their mothers' cocaine abuse will continue, even at public hospitals," he said. "Search warrants can be used as well as consents to search." He added, "There is no constitutional right for a pregnant mother to use drugs. The unborn child has a constitutional right to protection from its mother's drug abuse." The Charleston hospital discontinued its policy after a 1993 lawsuit was filed, but police already had arrested 30 maternity patients. The case's journey to the 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 U.S. District Court jury decided against the women, and last year the 4th U.S. Circuit Court of Appeals 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 cases, 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, Ohio and Wisconsin have rejected such prosecutions, 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 3-2 that such prosecutions were allowed, and that a fetus was a person under the state's child-abuse laws. So the U.S. Supreme Court will rule on a policy the hospital discontinued several years ago, but no one can say whether the issue is academic. - --- MAP posted-by: Doc-Hawk