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Hospital says baby safety outweighs mom's rights in prenatal drug-testing case

 

In this story:

The city's arguments

Hood under sharp questioning

Justices' questions for Smith

RELATED STORIES, SITES



By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- A lawyer for 10 women arrested after their urine tested positive for cocaine told the U.S. Supreme Court on Wednesday her clients' Fourth Amendment rights were violated because the hospital where the women were tested did not tell them the results would be handed over to the police.

 VIDEO
CNN's Charles Bierbauer looks at U.S. Supreme Court case involving drug testing of pregnant women (Oct. 4)

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  ALSO
• Women who sued over hospital cocaine testing policy speak out
  RESOURCES
Read the lower court opinion under review:
Ferguson v. City of Charleston (4th Cir. 1999)
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bierbauer • Court Report: CNN's Charles Bierbauer previews the term

• The 2000-2001 term begins
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Priscilla Smith, a lawyer at the Center for Reproductive Law and Policy, said during oral arguments in Crystal Ferguson v. City of Charleston that the Medical University of South Carolina illegally "searched" the women without probable cause. She said they did not have warrants as required by the Fourth Amendment, which protects people against "unreasonable searches."

She said the policy does not deserve a "special needs" exception to the amendment because its aim was solely to arrest pregnant drug users. The high court has ruled that authorities do not need warrants for some kinds of searches if the police show they have a societal interest beyond law enforcement.

"This (program) was designed by and for law enforcement," Smith said. "If (MUSC officials) had probable cause, why not obtain a warrant?"

The city's argument

Robert Hood, the lawyer for the city, said the tests were medically necessary, not designed to serve law enforcement. He said the police did not implement the policy, as Smith alleged, adding that the policy aimed primarily to protect fetuses, considered "persons" under South Carolina law, by encouraging women to kick the cocaine habit.

The policy, in effect from 1989 to 1993, gave cocaine-using pregnant women a choice: Submit to drug counseling or go to jail, Hood said in an interview last month. Women who tested positive twice for cocaine use were arrested, he said in court Wednesday.

"We (were) trying to stop a woman from doing major, irreparable harm to her unborn child," he said.

He also said the women consented to the special urine screenings as part of the prenatal care process, and were aware that if they tested positive twice they could go to jail.

Hood argued that the policy deserves the "special needs" protection because MUSC officials had a purpose beyond law enforcement in view: protecting the lives of "unborn babies."

In addition to representing the city, Hood represents the MUSC, MUSC officials, the Charleston Police Department and local prosecutors, all named in the lawsuit brought by the women.

Hood under sharp questioning

The justices sharply questioned Hood. Moments into Hood's arguments, Justice John Paul Stevens challenged his contention that the women had consented to the test. Stevens and other justices said they thought the women had not consented and that was why the case had reached the Supreme Court.

Hood said he proved in a South Carolina federal trial court -- and the jury agreed -- that the women had signed forms that said they would be imprisoned if they continued to use cocaine. He reiterated that the policy was put in place to prevent a "tragic crisis in society" -- crack babies -- and that unlike the 10 plaintiffs, most women chose treatment over jail.

Justice Sandra Day O'Connor said the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, did not rule on the consent issue and suggested that the Supreme Court might return the case to Richmond to clarify the issue.

Justice Stephen Breyer said the women's lawyers had presented ample scientific evidence; indeed, the American Medical Association and the American Public Health Association submitted friend-of-the-court briefs blasting the MUSC policy as misguided and based on false science.

"All the studies suggest that this type of prosecution does not help the third party, namely the fetus," Breyer said. "I don't see how you can win your case without medical studies to the contrary."

Hood replied that medical experts testified during trial that the policy satisfied an "urgent need" to protect fetuses.

Justice David Souter said the policy forced doctors to become "agents of the police." In this case, "the police should not be able to use this evidence without probable cause," he said.

Hood rejected that suggestion, saying health care professionals instituted the policy to reduce the number of cocaine-addicted expectant mothers. Medical literature has shown problems like birth defects and premature deaths if mothers use cocaine, Hood argued in court papers.

Justices' questions for Smith

Justice Sandra Day O'Connor asked Smith whether urine tests for drugs were part of routine prenatal care. Smith replied most urine screenings were, but the cocaine screening was done in addition to routine tests, and only for those women the hospital suspected were cocaine users.

"If you told me that doctors routinely test the women for drugs, that would sound OK to me," Justice Stephen Breyer said. However, he added, if "a patient is going to hurt another person," doctors do have "an obligation to tell the police."

Smith replied that if the doctors had not violated patient-physician confidentiality and if the women had consented to results being given to the police, there would be no constitutional problems with the policy. In this case, she said, doctors were forced to collaborate with the police.

"If the tests were for medical purposes, for medical care, there would not be a problem," she said.

Justice Antonin Scalia asked, "In some cases, you can't get treated for gunshots without (the doctors) telling the police. How is that different from this program?"

Smith said the problem with the policy at issue was that officials selected women to be "searched" based on a "discretionary list of criteria" that suggested drug use, such as infrequent prenatal care and unusual medical problems with the fetus.

Scalia disagreed, saying the policy could be viewed as medically necessary. "This is being done for medical purposes. That's why the hospital does it," he said.

Background of the case

MUSC officials began the policy in 1989 at the urging of Shirley Brown, a nurse in the obstetrics department, who sought legal advice after noticing that more and more low-income women seeking prenatal care were testing positive for cocaine.

Brown, Charleston police, local prosecutors and prenatal care doctors at MUSC formed a task force to determine how best to protect the fetuses, according to the 4th Circuit ruling.

The task force reasoned that because a live fetus is a "person" under South Carolina law, expectant mothers who used cocaine after the 24th week of pregnancy could be found guilty of distributing an illegal substance to a minor, a person under the age of 18, court papers show.

From 1989 to 1993, 253 women tested positive for cocaine use, Hood said in an interview before the case was heard. Thirty women who did not get treatment were arrested, though none received prison terms. Instead, they were sentenced to probation and ordered by the courts to undergo treatment, Hood said. Ten of those 30 women filed suit.

The women sued in 1993, losing at the trial and appellate levels.



RELATED STORIES:
High court to decide if hospital erred in sharing medical test results with police
October 3, 2000
Supreme Court to decide if drug checkpoints violate the Fourth Amendment
September 27, 2000
Police search sets motorist on road to Supreme Court
September 27, 2000
Judge orders emergency hearing on FBI's Carnivore
August 2, 2000
ACLU: Block FBI e-snoops
July 17, 2000
Rewriting the fourth amendment
May 12, 2000

RELATED SITES:
The Medical University of South Carolina
The Center for Reproductive Law and Policy


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