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Supreme Court to Hear Drug-Testing Case

Tuesday, April 11, 2000

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A case involving the rights of 10 pregnant women, but with possible ramifications for all those who seek medical care, will be heard by the U.S. Supreme Court this fall.

A Charleston, S.C., public hospital obstetrics clinic in 1989 began a program it claimed was designed to reduce the number of infants born with difficulties caused by prenatal drug abuse. The clinic staff began to routinely test the urine of women who were 28 weeks or more pregnant and who fit their profile of potential drug abusers. The six criteria of the profile were the women's failure to receive adequate prenatal care, four other obstetrical problems, as well as a previous cocaine use. If the women tested positive, the hospital staff alerted police and they were summarily charged with distributing an illegal drug to minors.

South Carolina law considers 28-week fetuses as legal persons and, it is believed, cocaine in the bloodstream of a pregnant woman harms fetuses. Often, the women were arrested in their hospital beds, wearing only their gowns and still hemorrhaging from the birth.

Nine of the 10 women suing are African-American. These same nine were arrested. The tenth was told she could either enter the hospital's psychiatric facility for 30 days or face arrest. She agreed to treatment. The test-and-arrest program ended after the National Institutes of Health informed the hospitalthat the institute considered the policy a violation of its rules. In addition, the federal Office of Civil Rights began an investigation.

The women sued the hospital trustees, individual staff members, the city of Charleston and the local prosecutor claiming the hospital and prosecutors violated their rights to privacy and targeted them for investigation based on their race. They also claimed that the police and prosecutor violated their constitutional protection from unreasonable searches by obtaining their drug test results without a warrant. The suit was tried in 1997. The trial judge issued his decision in 1998 upholding the policy, as did the federal appeals court a year later.

The issue to be argued before the nation's highest court will be whether the police and prosecutor needed a warrant to obtain the results of the hospital's drug test, or whether the need to reduce the potential harm of cocaine abuse to the fetuses outweighed that constitutional requirement.

The lower court held the hospital's practice of sharing the drug test results with the police was permissible because the arrangement addressed the "special need" to protect the health of the fetus. "Indeed, prenatal testing was the only effective means available to accomplish the primary policy goal of persuading women to stop using cocaine during their pregnancies in order to reduce health effects on children exposed to cocaine in utero," the court wrote. A dissenting judge noted that the women were arrested after they had given birthÑtoo late to affect the health of the fetuses.

Lynn Paltrow, the women's attorney and program director of the National Advocates for Pregnant Women, argues that the case has implications for all who seek medical treatment or are under the slightest suspicion of using drugs or abusing alcohol.

"If this decision is upheld, you could go in the emergency room after an automobile accident and the staff could ask you if you were wearing a seat belt at the time of the accident. If you said no, they could call the police and have you arrested," Paltrow said. South Carolina's attorney general, Charles Condon, was the Charleston prosecutor at the time of the arrests. His office has not commented specifically about the court's acceptance of the case, but has released a statement regarding the case in which he is quoted as saying:

"Our courts have said that these unborn children are entitled to the same right to life as any other citizen. The right to life, far from being a special right, is a right given by God and guaranteed by the State of South Carolina."

Charles Condon

Next week: Prenatal poverty may cause more harm than drugs.