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High court to decide if hospital erred in sharing medical test results with police


In this story:

The city's arguments

History of the program

Medical community criticism of the MUSC policy


By Raju Chebium Correspondent

WASHINGTON (CNN) -- In 1989, the Medical University of South Carolina instituted a policy under which university officials gave the police the names of some pregnant women whose urine samples revealed cocaine use.

MUSC officials, local prosecutors and the Charleston, South Carolina, Police Department all said the policy was designed to safeguard the lives of the fetuses, citing medical studies definitively linking birth defects and other problems to cocaine use by the expectant mothers.

Read the lower court opinion under review:
Ferguson v. City of Charleston (4th Cir. 1999)
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  • The 2000-2001 term begins
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But 10 women sued in 1993, the year the policy was terminated, saying they never consented to their names being given to the police. They alleged that their Fourth Amendment right to privacy was violated.

In its next term, the Supreme Court will decide of the policy constituted an "unreasonable search and seizure" under the Fourth Amendment.

The court will hear oral arguments in Ferguson v. City of Charleston on October 4, two days after the 2000-2001 term begins. The justices will review a July 1999 decision by the 4th U.S. Circuit Court of Appeals, which ruled 2-1 against the women.

The New York-based Center for Reproductive Law and Policy, which is representing the plaintiffs along with Charleston attorney Susan Dunn, says on its World Wide Web site the core issue in the case is whether the "Fourth Amendment permits the state, acting without either a warrant or probable cause, to secretly search pregnant women who seek prenatal care for evidence of criminal activity."

"Transforming a confidential doctor visit into a sting operation for law enforcement is not only an unconstitutional violation of rights, it is also a misguided and ineffective health policy that only serves to deter women from seeking critically needed prenatal care," CRLP lawyer Priscilla Smith, who will argue the case before the high court, said in a statement.

"Turning a hospital into a police station undermines the medical privacy rights of all Americans," she said.

Under the policy, pregnant women whose urine tests revealed cocaine use were given a choice: undergo substance-abuse treatment or go to prison, according to attorneys in the case and court documents.

The women alleged that the urine tests constituted illegal "searches" under the Fourth Amendment because they did not consent to the results being shared with the authorities, according to the 4th Circuit ruling.

"Everyone in this country is entitled to the Fourth Amendment. The fact that you are pregnant or the fact that you might have a substance abuse problem does not change that protection," Dunn said.

Though the policy no longer exists and MUSC has indicated it will not revive the policy, a constitutional sanction from the high court could prompt other hospitals to adopt similar policies, Dunn said.

That trend would make "any woman of a pregnant age a second-class citizen," she said, adding no hospital in the country had or has a policy mirroring the MUSC model.

The city's arguments

Robert Hood, a Charleston attorney representing the defendants, said the women's privacy rights were not violated because they knew police would get involved if they refused drug treatment.

"Each and every woman consented to the search, knowing that if cocaine was found in their urine and they did not go to substance abuse, the results would be turned over to law enforcement," Hood said in an interview. "Therefore, the Fourth Amendment does not apply because it was a consensual search."

Hood said the lower courts found the program constitutional by applying the "special needs" test developed by the Supreme Court in prior cases. If the authorities prove they have a societal interest beyond pure criminal law enforcement, the court has held that warrantless "searches" are "reasonable," Hood said.

The "special need" in this case was protecting the lives of the fetuses, said Hood, who is representing MUSC, MUSC officials and prosecutors named in the lawsuit, the police and the city.

"In treating maternity patients, there is a special need to prevent the staggering consequences of drug use. When this policy was instituted in 1989, there was an epidemic of women using cocaine when they were pregnant," he said.

Hood said officials developed the policy at a time when medical studies linked premature infant deaths, birth defects and other health problems to expectant mothers using cocaine -- a "staggering" public health crisis that cost $3 billion nationally in 1989.

"Medical criteria underlie the program. The law enforcement's only role was as a tool ... by which the health care providers were trying to prevent pregnant women from using cocaine," he said, refuting an argument from Dunn that under the policy MUSC health-care providers were essentially "deputized" as law-enforcement officers.

The appeals court agreed that the state's interest -- MUSC is a state-funded institution -- in protecting the health of the fetus qualified for the "special need" exception to the Fourth Amendment.

"The rising use of cocaine by pregnant women among MUSC's patient base and the public health problems associated with maternal cocaine use created a special need beyond normal law enforcement goals," the majority opinion said, adding that the test "effectively advanced the public interest."

"The intrusion suffered by Appellants was minimal. Therefore, a balancing of these factors clearly demonstrates that the searches conducted were reasonable and thus not violative of the Fourth Amendment," the court concluded.

No other groups filed friend-of-the-court briefs in support of Hood's position, Hood's office confirmed.

History of the program

MUSC began the program 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, according to Hood. 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.

Medical community criticism of the MUSC policy

The American Public Health Association and the American Medical Association, each representing scores of health groups, filed friend-of-the-court briefs with the high court, calling the policy unscientific and the lower courts misguided for approving it.

The APHA took the MUSC to task for "compelling health care professionals to abandon their duties to patients" and become, essentially, law enforcement officers.

The AMA said the policy "reflects a basic misunderstanding of the nature of drug abuse. In the experience of medical science, drug abuse is a disease that requires treatment and education. It cannot be cured merely by an exercise of self-discipline, nor can it be cured by subjecting addicts to criminal penalties."

The ACLU, the National Abortion Rights Action League, legal groups that defend the Constitution and a host of other groups have filed friend-of-the-court briefs supportive of the women.

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

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