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Drug Tests on Pregnant Women Studied

February 28, 2000

WASHINGTON (AP) _ The Supreme Court, tackling a dispute over women’s privacy, said Monday it will decide whether public hospitals can test pregnant patients for drug use and tell police who tested positive.

The court must determine whether a South Carolina hospital’s policy aimed at detecting pregnant women who use crack cocaine violates the Constitution’s protections against unreasonable searches.

``On one level, the question before the court is whether pregnant women have lesser constitutional rights than other Americans,″ said Simon Heller of the Center for Reproductive Law and Policy, one of the lawyers representing 10 women who tested positive.

Some of the women were arrested ``right out their hospital beds, still bleeding from having given birth,″ he said, as the state used its child-endangerment law to prosecute women who use illegal drugs while pregnant.

Lynn Paltrow of the Women’s Law Center, another of their lawyers, called the policy ``bad medicine″ because it deters women from seeking prenatal care.

South Carolina Attorney General Charlie Condon said the case will not deter the state’s efforts. ``South Carolina’s policy of protecting unborn children from their mother’s cocaine abuse will continue even at public hospitals,″ he said. ``Search warrants can be used as well as consents to search.″

Condon added: ``There is no constitutional right for a pregnant mother to use drugs. The unborn child has a constitutional right to protection from its mother’s drug abuse.″

The hospital discontinued its policy after a 1993 lawsuit was filed, but police already had arrested 30 maternity patients.

The justices’ decision, expected sometime in 2001, could determine whether the policy ever gets reinstated and whether other hospitals consider adopting similar tactics.

The South Carolina law makes it a crime to ``refuse or neglect to provide the proper care and attention″ so that a child ``is endangered or is likely to be endangered.″ The state’s Supreme Court has ruled that a viable fetus _ one able to live outside the uterus _ is a child under the law and has upheld the law’s use against pregnant women.

South Carolina prosecutors have brought such cases dozens of times since 1989, and the nation’s highest court refused two years ago to review such prosecutions. The highest courts in Florida, Kentucky, Nevada and Ohio have disallowed them, however.

The law was enacted during the crack cocaine epidemic, but pregnant women found to have used other drugs have also been prosecuted.

At the Medical University of South Carolina, a public hospital in Charleston, officials decided in 1989 to help prosecutors. If a woman’s urine test indicated cocaine use, she was arrested for distributing the drug to a minor.

In early 1990, the policy was changed to give drug-using patients a choice between being arrested and enrolling for treatment.

Ten women sued the hospital and others in 1993, contending among other things that the urine testing, performed without court warrants, amounted to unreasonable searches that violated the Fourth Amendment.

The hospital treats indigent patients, many of them black. Of the 30 women arrested, 27 were black. The lawsuit alleged that the hospital policy was racially discriminatory, but that argument was not raised in the Supreme Court appeal.

After a six-week trial, a federal jury ruled against the women. The 4th U.S. Circuit Court of Appeals upheld that verdict last July.

``In light of the documented health hazards of maternal cocaine use and the resulting drain on public resources, (hospital) officials unquestionably possessed a substantial interest in taking steps to reduce cocaine use by pregnant women,″ the appeals court ruled.

The policy effectively advanced that interest, it said, adding that the urine tests ``were minimally intrusive.″

For those reasons, the appeals court concluded the searches were reasonable under a ``special needs″ exception to the Fourth Amendment’s general requirement that a search be authorized by court warrant or be based on ``probable cause″ to suspect a crime.

The appeal called the July ruling a ``radical extension of the special needs doctrine″ that would let police search without a warrant or individualized suspicion any time ``the government can present a health or safety reason.″

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