Pubdate: Fri, 22 Sep 2000
Source: USA Today (US)
Copyright: 2000 USA TODAY, a division of Gannett Co. Inc.
Contact:  1000 Wilson Blvd., Arlington VA 22229
Fax: (703) 247-3108
Website: http://www.usatoday.com/news/nfront.htm
Author: Joan Biskupic
Facts: Cocaine and Pregnancy:
http://www.csdp.org/factbook/pregnant.htm

DRUG-TESTING CASE GOES TO HIGH COURT

CHARLESTON, S.C. -- Lawyer Robert Hood extends the palm of his hand
and thrusts it across a conference table to show the size of a baby
born prematurely and with cocaine in his system. "Hardly this size and
weighing only three pounds," Hood says. "If you saw one of these crack
babies, you'd cry. I did."

That, Hood says, helps explain why a state-run hospital routinely told
police about pregnant patients who tested positive for cocaine use.

One of those patients still chokes up when she recounts how she was
jailed 11 years ago after giving birth, wearing only a nightgown and
still bleeding heavily. "I was being treated like an animal, rather
than like someone who had made a mistake," says the woman, recalling
the pain and humiliation of being separated from her newborn son and
taken from the hospital in handcuffs.

Such are the emotions circling a South Carolina case that will become
a national test for how far government can go to stop pregnant women
from endangering their unborn children.

The U.S. Supreme Court, which opens its 2000-01 term Oct. 2, will hear
arguments two days later concerning the Medical University of South
Carolina's practice of working with Charleston prosecutors to identify
women using cocaine. Ten women who were arrested either during their
pregnancy or immediately after giving birth claim the policy violated
their constitutional protection against unreasonable searches.

The dispute inspires the type of passion that touches abortion cases,
and it raises questions about how a woman's privacy rights might be
compromised in the name of fetal health. Although no other U.S. city
has gone as far as Charleston's drug-testing policy, there have been
several cases across the nation in which pregnant women who failed to
obtain medical care or abused alcohol or drugs were locked up to
protect their unborn children.

Distilled to its legal essence, Ferguson vs. Charleston concerns
whether the women whose urine was tested for drugs without their
knowledge can claim that their Fourth Amendment protection against
unreasonable searches and seizures was violated.

"Searches" such as urine tests usually require authorities to obtain a
warrant. But the city and state officials Hood represents contend that
the Charleston program meets a "special governmental needs" exception
to the Fourth Amendment because of the health problems and financial
costs associated with maternal cocaine use. The testing program, which
began in 1989, was suspended in 1993, so questions of its legality
could be resolved in the courts.

"In the context of when this occurred, there was an epidemic in this
country," Hood says, recalling the crack cocaine epidemic of the
1980s. The women challenging the program say that any "crack baby"
crisis was overblown. And, they add, the drug-testing policy actually
drove some women away from prenatal care and treatment programs.

A federal appeals court based in Richmond, Va., rejected the
challenge. It ruled that drug testing was necessary and effective in
helping mothers and their children, and it intruded on the mothers'
privacy only minimally.

The 4th Circuit Court of Appeals, whose ruling is now before the
Supreme Court, observed that maternal cocaine use can cause premature
labor, low birth weight and serious birth defects, and it can lead to
substantial costs for the state. It also said taking a urine sample is
a normal part of a pregnant woman's medical exam, so any infringement
on her rights was negligible.

Besides challenging the effectiveness of the drug-testing program, the
women's appeal to the Supreme Court questions the notion that a
pregnant woman might have a lowered expectation of privacy. They
emphasize that to conduct such a search without a warrant, government
must show that the search is not driven by the priorities of law
enforcement.

Their brief to the high court details how police and prosecutors
helped develop the policy in 1989 after a nurse at the Medical
University of South Carolina hospital approached them about screening
pregnant women for cocaine use. And lawyers for the women argue that
under the 4th Circuit's reasoning, government could conduct any
warrantless search as long as it has a health or safety reason -- a
rule so broad that it would eviscerate the Fourth Amendment.

The women "entered the care of the hospital as free citizens. They
were assured by the hospital that their medical records would be
treated as confidential," says the filing signed by the women's
lawyers, who include Priscilla Smith of the New York-based Center for
Reproductive Law & Policy, and Charleston lawyer Susan Dunn.

In an interview, Dunn scoffs at the idea that local officials were
trying to help pregnant women and their children by arresting and
jailing the women. "Even if your mother is an addict, you need your
mother," Dunn says.

Smith, who will argue the case opposite Hood, says, "This deceptive
scheme strikes at the core of the physician-patient bond, undermining
the trust and confidence."

The women who were arrested under the program -- and charged with
distributing cocaine to a minor -- talk with some reluctance about
their situations. The woman who was taken to jail bleeding and in only
a nightgown spoke on the condition her name not be used. "I was hooked
(on drugs)," she says. "I had financial problems. But I didn't deserve
what happened to me. In that jail, I just wanted to die."

Separately, another woman, Patricia Williams, recalls being kept at
the hospital even though she was ready to leave just so police could
arrest her: "They started reading me my rights, and I almost passed
out. I didn't know what was going on."

Most of those jailed under the Charleston policy went into treatment
programs and weren't prosecuted.

The American Civil Liberties Union, joined by 22 other groups, notes
in its brief that the policy targeted low-income women and that all
but one or two of the 30 women arrested during the program were
African-American. "If the state can drug-test pregnant women based on
criteria that have more to do with poverty than with actual drug use,"
it warns, "there is no reason why the state could not . . . monitor
the behavior of women more generally throughout their
pregnancies."

The American Medical Association, meanwhile, told the court that drug
abuse is a disease that requires treatment and cannot be cured "by
subjecting addicts to criminal penalties." 
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