Pubdate: Wed, 25 Jun 2003
Source: Charleston City Paper, The (SC)
Copyright: 2003 The Charleston City Paper
Contact:  http://www.charlestoncitypaper.com/
Details: http://www.mapinc.org/media/2400
Author: Bill Davis

U.S. SUPREME COURT ABORTS MUSC CASE

Decision Not To Hear Appeal Paves Way For Damages Lawsuit

There's a big difference between questions that begin with the words 
"whether" and the words "how much." As in, "whether or not a person's at 
fault in an auto accident," or "how much Allstate will have to shell out to 
cover the damages."

As in "whether" a group of women were wronged beginning in 1989 when they 
were arrested under state child endangerment laws at MUSC after testing 
positive for cocaine in their bloodstreams while pregnant, and "how much" 
they were wronged.

After the U.S. Supreme Court declined last week to hear the government's 
latest and last appeal, functionally affirming a lower court's decision, it 
became clear that the state had wronged the women. Now, it looks as though 
MUSC and various state government agencies, after years of wrangling up and 
down the state's and the nation's court systems, will get a chance to find 
out the answer to the "how much" question.

Thirty pregnant MUSC patients were arrested between 1989 and 1993 under a 
program whose policies did not include telling the women that some of the 
blood being drawn from their veins was being diverted to a drug screening 
test - much less that the test results would be turned over to law enforcement.

Charlie Condon, before a stint as the state's Attorney General and a failed 
run at the governor's mansion, was in charge of the prosecution of the 
women. Despite the Supreme Court's decision, getting him to say that the 
government did anything wrong is no easy task.

"The purpose of the program was, and is, to help children and their mothers 
avoid harm from using drugs - illegal and harmful drugs," he says from his 
Mt. Pleasant office, where he now serves as general counsel and vice 
president of a local insurance company. "When people look at the purpose, 
it's one everyone can agree on; the difference is how to achieve those goals."

Critics of the program still puzzle the former 9th District Solicitor. "How 
do they propose to deal with the situation, where the typical case is 
someone who has had multiple opportunities to avail themselves of free drug 
treatment?" He disagrees with his critics that "coerced" drug treatment 
doesn't work, referencing the state's drug court system as a prime example, 
where those sentenced must complete drug treatment or go to jail.

After some prodding, Condon admits that, in retrospect, there was room for 
improvement in the program and its policies, as he sided with the Court 
that the some of the language in the forms the women signed upon admission 
was unclear. After further prodding, Condon concedes that the language 
informing the women of the destination of their blood tests was not only 
unclear, but wholly absent.

Yet and still, he holds to the mission of the program.

"As for children, we, as a society, owe them our best efforts to get their 
[drug using/addicted] parents' attention, whether that be through threat of 
arrest, or family members concerned enough to deal out some tough love. At 
the end of the day, we have to figure out how to do this in a constructive, 
legal, and proper manner to help break the cycle."

Susan Dunn, one of Condon's critics and one of the lawyers representing 10 
of those women arrested for the past nine years, isn't going for Condon's 
line of thinking.

"It would make some sense if the technique had any clinical basis," she 
says, likening Condon's approach to giving iodine to a child for a cold 
because iodine is good for the body in general.

She also rejects Condon's coerced-treatment-is-better-than-no-treatment 
argument. "If all we had to do was to scare people shitless, then there'd 
be no problems," she says from her peninsular office. "Jail is not a good 
solution; it's documented as a failure. And why take the most vulnerable 
people and experiment on them?"

Particular needs and particular situations should drive how drug-using 
pregnant mothers are approached, according to Dunn. "And I am saying you 
have to be very careful with a pregnant person; they are in a time-frame 
limited situation.

"The way to deal with [drugs in the bloodstream] is to admit them to a 
hospital or commit them. If it's a medical crisis, there are ways to deal 
with that that don't violate the Constitution and require criminalization." 
Jail, she says, has nothing to do with the leverage needed to get a 
using/abusing mother's attention.

What will get the government's attention is how much it will have to pay in 
legal damages to the remaining 10 women. At least one of Dunn's original 
clients won't be there, having already succumbed to cancer.

The damages trial could be sent back down to a Charleston federal court as 
soon as next month, Dunn said.

While the government has exhausted its Constitutional appeals as to 
"whether" her clients were wronged, Dunn wouldn't be surprised if there 
weren't at least one round of appeals to pay her legal bills. She estimates 
her tab is hundreds of thousands of dollars, in front of the right judge 
and the right jury.

For Cookie Washington, the president of the state chapter of the National 
Organization of Women, as well as the women's advocate for nearly a decade, 
it likely won't end there. Casting the issue as an ongoing reproductive 
rights battle, like the one facing a woman currently residing in a South 
Carolina jail for having suffered a miscarriage with cocaine in her 
bloodstream, Washington sees the MUSC case as the first battle in an 
ongoing war.

"I hope for the sake of all women in South Carolina, and for the sake of 
their reproductive rights, that this case is settled in the clients' 
favor," says Washington.
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MAP posted-by: Larry Stevens