Drug-Testing Pregnant Women Nixed

ByGeraldine Sealey

March 21, 2001 -- Strengthening constitutional protections against unreasonable searches, the Supreme Court ruled today that hospitals cannot test pregnant women for drugswithout their consent and turn the results over to police.

In a 6-3 ruling, the court said drug testing by a public hospital in Charleston, S.C., violated the Fourth Amendment of the Constitution — which bars unreasonable search and seizure — even though the hospital wastrying to prevent women from harming their fetuses by using crack cocaine.

Under the Constitution, if women don't agree to the tests, a warrant is necessary, the court ruled. The justices asked a lower court to determine whether the patients actually consented to the tests.

Writing for the court, Justice John Paul Stevens said: "While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off ofdrugs, the immediate objective of the searches was to generateevidence for law enforcement purposes in order to reach thatgoal."

When hospitals gather evidence of possible illegal activity from their patients, "they have a special obligation to make sure that the patients are fully informed about their constitutional rights," Stevens said.

Stevens' opinion was joined by Justices Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Anthony M. Kennedy filed a separate opinion concluding the drug tests were unconstitutional.

Women Arrested in the Hospital

At issue in the case was a policy at the Medical University of South Carolina, under which some women were arrested in their hospital beds after testing positive for illegal drugs and jailed under the state's child-endangerment law.

In the fall of 1989, MUSC began testing the urine of pregnant women suspected of cocaine use and, in some cases, reporting the results to law enforcement officials. Later, the policy was amended so those patients who tested positive were given a choice between being arrested and receiving drug treatment.

In 1993, 10 women who tested positive for cocaine filed suit in U.S. District Court, claiming their Fourth Amendment rights had been violated.

In the past, the Supreme Court has allowed drug testing without awarrant or individual suspicion when the government can demonstratea "special need." To fit this category, the state must establish its policy is not designed to help law enforcement and that those being searched have a lower expectation of privacy.

But today's ruling means that drug testing of pregnant womenwithout their consent, even to protect their unborn children, cannot be considered a "special need."

City: Policy Aimed to Help

At a conference call with reporters today, lawyers for the women who sued the Charleston hospital said they were unaware of any other U.S. jurisdiction in which doctors are working with police to obtain drug-abuse evidence on pregnant women.

Charleston officials have defended their policy by saying it was not meant to discriminate or violate rights, but to help drug-using patients get counseling and to save fetuses from harm.

Siding with city officials were three dissenters: Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. Writing for the minority, Scaliasaid doctors must keep the mother and child's welfare inmind. If they are also considering gathering evidence for police, it should make no difference, he wrote.

In a statement today, South Carolina Attorney General Charles Condon, who began the Charleston program when he was a local prosecutor, said drug-testing of pregnant women can continue despite the ruling. Police just need to get a search warrant or the individual's consent, he said.

"There is no right of a mother to jeopardize the health and safety of an unborn child through her own drugabuse," Condon said.

‘Pregnant Women Have … Rights’

Priscilla Smith, the lawyer who argued the women's case before the Supreme Court in October, applauded the ruling, calling it extremely important in protecting the rights to medical privacy.

"Today the Supreme Court decision affirms the right to confidential medical care for all Americans and reaffirms that pregnant women have the same rights as everyone else to a private relationship with their doctors," said Smith, a lawyer with the Center for Reproductive Law and Policy.

In lower court action, the district court sided with the city in 1996.

A divided 4th Circuit Court of Appeals upheld that decision last year, ruling the policy was allowed under the “special needs” exception to the Fourth Amendment.

The controversial policy was discontinued, even before the high court heard arguments in this case. The hospital temporarily suspended the program in 1994 after investigations by two federal agencies, and later amended it so women who tested positive would be reported to the Department of Social Services rather than the police.

The case is Ferguson vs. Charleston.

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