Pubdate: Thu, 22 Mar 2001 Source: Washington Post (DC) Copyright: 2001 The Washington Post Company Contact: 1150 15th Street Northwest, Washington, DC 20071 Feedback: http://washingtonpost.com/wp-srv/edit/letters/letterform.htm Website: http://www.washingtonpost.com/ Author: Charles Lane, Washington Post Staff Writer COURT RULES AGAINST S.C. ANTI-DRUG TACTIC Justices Strike Hospital's Testing, at Police Behest, of Nonconsenting Pregnant Women The Supreme Court ruled yesterday that a public hospital cannot administer drug tests to pregnant women without their consent and forward positive results to police. The decision limits how far government agencies may go in gathering and disseminating private information about citizens -- even when it is supposed to be for their own good. By a vote of 6 to 3, the court held that tests of expectant mothers' urine for cocaine, conducted by medical personnel in cooperation with local law enforcement officials at the Medical University of South Carolina in Charleston, amounted to unconstitutional police searches. Officials' professed goals -- protecting the health of the women and their unborn children -- did not justify conducting the tests without a search warrant, the court said. The case had aroused strong feelings among supporters and opponents of the policy because it affected doctor-patient confidentiality and touched on questions of racial and sexual discrimination, as well as the legal status of fetal life. The Charleston hospital's policy apparently was unique in the United States, but a favorable ruling from the court might have signaled that other jurisdictions could experiment with similar tactics. However, the court said the drug test policy did not qualify for the "special needs" exception that the justices have carved out of the search warrant requirement in past cases involving non-police personnel -- such as school principals searching students' lockers. The police and prosecutors were too deeply involved in the Charleston hospital's program, the court held. "Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit" the special needs definition, Justice John Paul Stevens wrote for the majority. He was joined by Justices Sandra Day O'Connor, David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg. Justice Anthony M. Kennedy wrote a separate opinion concurring in the judgment for slightly different reasons. "The court is sending a strong signal that other government institutions shouldn't be in the business of helping the police do police work," said William Stuntz, a professor of law at Harvard University who specializes in criminal procedure. Priscilla Lloyd Smith, an attorney for the Center for Reproductive Law and Policy who argued against the hospital's actions in the Supreme Court, added that "this is an extremely important decision in affirming the right to confidential medical care for all Americans, and it reaffirms that pregnant women have that same right. The court recognized that even if the state has some benevolent purpose at the end of the road, if they're going to use the criminal law to achieve it, they need a warrant." But Charlie Condon, the current state attorney general who as Charleston prosecutor helped formulate the policy, said in a prepared statement that "there is no right of a mother to jeopardize the health and safety of an unborn child through her own drug abuse. There is no constitutional right of a person to use drugs." The Medical University of South Carolina's hospital serves a mostly poor, black population. All but one of the 30 women arrested under the policy were black. Women who tested positive faced charges of cocaine use and, in some cases, because a viable fetus is legally a person in South Carolina, of distributing illegal drugs to a minor or child abuse. The Charleston policy, developed in 1989 by the hospital and local law enforcement officials amid national concern over "crack babies," was modified in 1990 to give drug-using patients a choice between being arrested or enrolling in drug treatment programs. Nevertheless, in 1993, Crystal M. Ferguson and nine other women who had been arrested (but not prosecuted) under the policy sued for $ 4 million, claiming civil rights violations by the city, law enforcement officials, medical personnel at the hospital and the hospital itself. Facing that lawsuit and a civil rights investigation by the Clinton administration's Department of Health and Human Services, the hospital dropped the policy in 1994. Doctors and nurses organizations, in South Carolina and elsewhere, also objected to the policy, suggesting that the threat of prosecution would deter women from going to the hospital and would defeat the policy's stated purpose. Justice Antonin Scalia dissented from yesterday's ruling, arguing that testing a "lawfully obtained" urine sample does not constitute a search as the Constitution defines the term and that, even if it did, it would be justified under the special needs test. Chief Justice William H. Rehnquist and Justice Clarence Thomas joined Scalia's dissent, but only on the second point. "Today's judgment, authorizing the assessment of damages against the county solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished," Scalia wrote. Yesterday's ruling does not end the litigation over the hospital's policy, because the decision was based on the assumption that the women had not consented to the drug tests. That issue remains open in the case, however. When the lawsuit went to trial in 1996, a jury in a South Carolina federal district court found that the women had signed forms authorizing the hospital to conduct drug tests and that they knew they could be prosecuted if the results came back positive. Consequently, the hospital won at trial. When the women appealed to the 4th U.S. Circuit Court of Appeals in Richmond, they challenged that jury finding, but the court upheld the hospital's policy as a valid instance of the special needs exception to the search warrant requirement, obviating the need to decide whether the women had consented to the tests. In its decision yesterday, the Supreme Court sent the case back to the 4th Circuit for a decision on the consent question. An attorney for Charleston, Robert Hood, said he is "optimistic" that his side can win in the 4th Circuit because appellate courts normally defer to juries on factual issues. "We lost the constitutional issue, but whether or not they make money . . . depends on whether they can convince the 4th Circuit that there was not consent, which I don't believe they can do," Hood said. Smith, the attorney for the women, said she will argue that the jury lacked a "sufficient" basis for its finding. The case is Ferguson v. City of Charleston, No. 99-936. - --- MAP posted-by: Derek