Pubdate: Wed, 21 Mar 2001
Source: Washington Post (DC)
Copyright: 2001 The Washington Post Company
Contact:  1150 15th Street Northwest, Washington, DC 20071
Author: Laurie Asseo


Hospitals cannot test pregnant women for drugs without their consent and
turn the results over to police, the Supreme Court ruled Wednesday in a
decision that bolstered the Constitution's protection against unreasonable

The 6-3 decision in the case of drug-testing by a South Carolina public
hospital said such testing violates the Constitution even though the goal
was to prevent women from harming their fetuses by using crack cocaine.

Such tests require a search warrant or consent, the justices said. They
ordered a lower court to determine whether the women at the Charleston
hospital actually consented to the tests.

"While the ultimate goal of the program may well have been to get the women
in question into substance abuse treatment and off of drugs, the immediate
objective of the searches was to generate evidence for law enforcement
purposes in order to reach that goal," Justice John Paul Stevens wrote for
the court.

When hospitals gather evidence for the purpose of incriminating their
patients, "they have a special obligation to make sure that the patients are
fully informed about their constitutional rights, as standards of knowing
waiver require," Stevens said.

Some women were arrested from their hospital beds at the Medical University
of South Carolina, a public hospital in Charleston. The women were jailed
under the state's child-endangerment law, but their lawyers contended the
policy was counterproductive and would deter women from seeking prenatal

Stevens' opinion was joined by Justices Sandra Day O'Connor, David H.
Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Anthony M.
Kennedy filed a separate opinion also deciding the drug tests were unlawful.

Dissenting were Chief Justice William H. Rehnquist and Justices Antonin
Scalia and Clarence Thomas. Writing for the three, Scalia said doctors are
supposed to have the mother and child's welfare in mind, and "that they have
in mind in addition the provision of evidence to the police should make no

The Constitution's Fourth Amendment generally requires that searches be
authorized by a court warrant or based on reasonable suspicion that a crime
has been committed.

However, the Supreme Court has allowed drug testing without a warrant or
individual suspicion when the government can demonstrate a "special need."
Under this reasoning, the court has authorized such testing of public high
school students and railroad workers involved in accidents.

Wednesday's ruling means that drug testing of pregnant women without their
consent to protect fetuses cannot be considered a "special need."

The decision reverses a federal appeals court ruling that said the South
Carolina hospital's drug-testing policy was a valid effort to reduce crack
cocaine use by pregnant women.

The hospital began drug-testing in 1989, during the crack cocaine epidemic,
and turning positive results over to police. If a woman's urine test
indicated cocaine use, she was arrested for distributing the drug to a

The policy was changed in 1990 to give drug-using patients a choice between
being arrested or enrolling for drug treatment.

Ten women sued the hospital in 1993, saying the policy violated the
Constitution. The hospital, which treats indigent patients, later dropped
the policy, but by then police had arrested 30 maternity patients.

A federal jury ruled for the hospital and the 4th U.S. Circuit Court of
Appeals agreed in 1999. The appeals court said the urine tests were
"minimally intrusive."

The hospital's lawyer told the Supreme Court during arguments last October
that the women were jailed not only for using an illegal drug but in an
effort to keep them from causing irreparable harm to their child.

Lawyers for the women argued that upholding the drug tests would broaden
police officers' authority to conduct other types of searches without
warrants or individual suspicion, as long as they could give a health or
safety reason for the search.

The Supreme Court ruled for the women.

Stevens wrote that the hospital's motive "was benign rather than punitive.
Such a motive, however, cannot justify a departure from Fourth Amendment
protections." He added that the policy "was designed to obtain evidence of
criminal conduct ... that would be turned over to the police and that could
be admissible in subsequent criminal prosecutions."

Last November, the Supreme Court ruled 6-3 that police cannot set up random
roadblocks to hunt for illegal drugs, saying the checkpoints violated the
Fourth Amendment.

Wednesday's case is Ferguson v. City of Charleston, 99-936.
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