JUSTICES STRIKE DOWN PREGNANCY DRUG TESTS

Hospital Notified Cops When Women Tested Positive

WASHINGTON -- In a decision hailed as protecting the privacy rights of all Americans, the Supreme Court ruled Wednesday that hospitals cannot test pregnant women suspected of drug use and turn positive results over to police unless the patient consents.

The court, in a 6-3 decision, said a South Carolina hospital's policy of working with law enforcement to detect and deter drug use among pregnant women violated the Constitution.  Even though the hospital said the program was designed to protect the mother and fetus from the harmful effects of drugs, the court said the program's primary purpose was to collect evidence for prosecution.

As a result, police must get a warrant or the patient's consent before testing, the court said.  It then sent the matter back to a federal appeals court in Richmond, Va., to consider whether the women in the case actually had consented to the testing.

"While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law-enforcement purposes in order to reach that goal," the court said in an opinion written by Justice John Paul Stevens.

The case was among the most closely watched of the term and drew the attention of scores of women's rights groups and medical organizations that weighed in with legal briefs supporting the 10 women who challenged the policy.  They maintained that the policy undermined the doctor-patient relationship and would discourage women from seeking medical care.

Priscilla Smith, the lawyer for the Center for Reproductive Law and Policy who argued the case on the women's behalf, said the ruling was an "extremely important decision in protecting privacy rights" and reaffirmed that pregnant women "have the same right to privacy in their medical information as everyone else."

But Robert Hood, who represented the state hospital in Charleston, said the court failed to recognize that medical personnel were less concerned about law enforcement than with working to help the women and their children.

"The policy was an attempt to give women amnesty rather that prosecute them," Hood said.  "Each of these women needed substance abuse treatment, and they got it."

But Justice Anthony Kennedy said in a separate concurring opinion, "The use of handcuffs, arrests, prosecutions and police assistance in designing and implementing the testing and rehabilitation policy cannot be sustained under our ious cases."

The hospital, working with police and prosecutors, developed the policy in 1989 after officials became concerned about a perceived epidemic of cocaine use among pregnant women.  The policy first provided that a woman who tested positive for drugs would be arrested for distributing drugs to a minor -- her fetus -- but the policy later was amended to give the option of drug treatment.  The policy has been suspended.

Ten women sued, arguing that the drug testing was an unconstitutional search under the 4th Amendment, which prohibits unreasonable searches.  The hospital said the search was not unreasonable because it was needed to protect the mother and fetus.

For a search to be reasonable under the 4th Amendment, authorities generally must have cause to believe an individual has done something wrong and must get a warrant.  But the Supreme Court has created some exceptions.

It has allowed random drug testing without warrants where needed for a special reason other than enforcing the law, such as testing transport workers involved in train accidents, Customs Service employees seeking promotions to sensitive positions or high school students participating in interscholastic sports.

The U.S.  Court of Appeals for the 4th Circuit said the drug testing of pregnant women also was such a case, because the purpose of the program was to ent women from using cocaine.

But the Supreme Court rejected that reasoning, ruling that testing the pregnant women involved a "far more substantial" invasion of privacy than in the other cases, where there were protections against disseminating the results to third parties.

The critical difference, the court said, stemmed from the reasons officials gave for the searches.  In the earlier cases, the court said, the testing was not necessary for law-enforcement reasons.

In the South Carolina case, however, the primary purpose of the program "was to use the threat of arrest and prosecution in order to force women into treatment."

To do so, there was "extensive involvement of law enforcement at every stage of this policy," the court said.

Hood said the irony of the case is that medical personnel in some circumstances still could notify police if they discovered a woman had used drugs in the last weeks of her pregnancy, as provided in state laws requiring that evidence of child abuse be reported.

Kennedy made that point in concurrence, noting the South Carolina hospital's policy actually could be more forgiving to the women than other alternatives because it gave them a chance to avoid prosecution by enrolling in a drug treatment program.

But the court, in the majority opinion, said testing urine for drugs "for the specific purpose of incriminating those patients" is entirely different from hospital employees providing police with evidence of criminal conduct that "they inadvertently acquire in the course of routine treatment."

The program "was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions," the court said.

Justice Antonin Scalia filed a dissenting opinion, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, in which he argued that the women had consented to the testing and that, even if they had not, there were good reasons to justify the search.

Scalia said the doctors undertook the program because they wanted to use the possibility of arrest as a strong incentive for the patients to get treatment.  The court's decision, he wrote, "proves once again that no good deed goes unpunished."