Pubdate: Tue, 29 Feb 2000
Source: Washington Post (DC)
Copyright: 2000 The Washington Post Company
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Author: Joan Biskupic, Washington Post Staff Writer

COURT TO RULE ON DRUG TESTING DURING PREGNANCIES

Delving into the lingering controversy over "crack babies," the Supreme
Court said yesterday it would rule on whether public hospitals may test
pregnant women for drug use and provide the results to police.

A group of women who had been been subjected to such testing at a
Charleston, S.C., hospital claimed it violated their constitutional
protection against unreasonable searches. The hospital's practice dates to
the 1980s, when maternal crack use was a high-profile social problem, and
the medical staff took the initiative with local prosecutors to safeguard
babies' health.

Under the Medical University of South Carolina's screening program, which
primarily affected poor black women who used the public hospital, the
results were used to arrest mothers who tested positive for cocaine.
Patients were charged with distributing cocaine to a minor, although as the
program developed many of them were given the option of treatment programs.

In the lower court ruling now before the justices, the U.S. Court of
Appeals for the 4th Circuit declared the practice constitutional, saying it
served "special governmental needs" and therefore was exempt from the
Fourth Amendment's usual mandate that police obtain a warrant before
conducting a "search." The 4th Circuit observed in its decision last year
that the urine screening was adopted after hospital staff "noticed an
alarming increase in the number of pregnancies affected by cocaine use,"
which can lead to premature labor and birth defects. It also noted that
local prosecutors believed "because a viable fetus was a 'person' under
South Carolina law, a woman who ingested cocaine after the 24th week of
pregnancy was guilty of the crime of distributing a controlled substance"
to a minor.

Yesterday's appeal by the group of 10 women, to be heard in the fall and
likely resolved in 2001, is the latest in a new series of high court
disputes involving aggressive search practices in an era of public concern
over drug use, firearms violence and other crime.

This new case, however, presents an unusual pairing of law enforcement and
medical people and the setting is a hospital, rather than the streets.
Advocates for the women declare that a ruling will determine "whether
pregnant women have lesser constitutional rights than other Americans."

In their legal filing, lawyers for the Center for Reproductive Law and
Policy, representing the women, told the justices that the lower court's
reasoning conflicts with past rulings on when the "special needs" of
government eclipse individual privacy concerns.

"The [4th Circuit] decision ... would permit law enforcement ... to engage
in searches as a means of gaining evidence for arrests and prosecutions ...
so long as the government can present a health or safety reason for its
actions," they said. "But nearly every application of the criminal law
serves some health or safety purpose."

Lawyers for Charleston and South Carolina officials counter that the public
interest in the health of crack babies is overriding. Robert H. Hood,
representing the officials, said yesterday that between 1989 and 1993, when
the lawsuit was filed and the policy suspended, about 200 women tested
positive and were reported to authorities. About 30 were arrested.

"The purpose was to protect the babies," Hood said. "The child is a viable
fetus, and testing her urine to protect her child is only doing what the
law against child abuse allows."

The American Public Health Association and other groups of nurses,
physicians and public health counselors from across the nation submitted a
"friend of the court" brief on the side of the women in Ferguson v. City of
Charleston. They argue that the urine screenings intruded on patients'
privacy and were not necessary to prevent a public health risk.

"Without denying the clear advisability of protecting infants from exposure
to cocaine," they added, "medical research is increasingly finding that the
sense of impending 'crack baby' crisis that impelled the prosecutors,
doctors, and nurses here to discard ethical and legal responsibilities ...
[was] without solid foundation."
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