Privacy rights for mothers prevail in drug-test ruling

When Charleston, S.C., adopted a policy of testing pregnant women in hospitals for illegal drugs, they were trying to protect unborn babies from the possible effects of narcotics abuse.

But the consequences for mothers who failed the tests - possible arrest - erupted into a firestorm.

The US Supreme Court, ruling on the issue yesterday, said the city's drug-testing policy constituted unreasonable search and seizure. The decision, by a 6-to-3 vote, affirms privacy rights in a hospital setting. The justices said the expectant mothers have a constitutional right to be informed that results of the tests may be used against them.

In effect, the policy pitted the rights of mothers against the rights of their unborn children, a legal dilemma that some analysts had suggested might open a new front in the contentious debate over abortion.

Some analysts had warned that if pregnant drug addicts could be prosecuted because of the potential harm done to their babies, then other women might be prosecuted for smoking cigarettes, drinking alcohol, or even coffee while pregnant.

But the court did not reach that issue.

Writing for the majority, Justice John Paul Stevens said a hospital that participates in a law-enforcement program must obtain the consent of its patients so that they are aware that medical tests performed on them may be used as evidence in a criminal case.

"As [hospital and law-enforcement officials] have repeatedly insisted, their motive was benign rather than punitive," Justice Stevens writes. "Such a motive, however, cannot justify a departure from Fourth Amendment protections."

The case, Ferguson v. City of Charleston, stems from a policy adopted in 1989 as a result of what city officials described as an epidemic of crack cocaine use.

Under the policy, pregnant women suspected of drug abuse were subject to secret urine tests for cocaine. Women who tested positive for cocaine were threatened with arrest unless they agreed to enter a drug-treatment program. Many did.

But over a five-year period, some 30 women were arrested. All but one were African-American, and some were arrested immediately after giving birth.

The policy was upheld as lawful in a 1996 federal court trial. A federal appeals court affirmed the ruling in 1999. The US Supreme Court heard oral arguments in the case in October.

Yesterday, the justices reversed the appeals court and remanded the case back to trial court to determine whether the arrested women had granted their consent to drug tests for law-enforcement purposes.

The Charleston hospital suspended its drug testing program in 1994. The high court's ruling makes it unlikely the policy will be resumed.

Defenders of the drug-testing policy had argued that the Charleston policy fit within a special-needs exception to Fourth Amendment warrant requirements that the court has recognized in some circumstances, like roadside sobriety tests aimed at identifying drunk drivers.

But the majority said the Charleston policy was different. "While the ultimate goal of the program may well have been to get 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," Stevens writes.

In a dissent, Justice Antonin Scalia said the policy did not violate constitutional protections. "As far as the Fourth Amendment is concerned: There was no unconsented search in this case. And if there was, it would have been validated by the special needs doctrine."

"There is always an unappealing aspect to the use of doctors and nurses, ministers of mercy, to obtain incriminating evidence against the supposed objects of their ministrations," Justice Scalia writes. "Although here, it is correctly pointed out, the doctors and nurses were ministering not just to the mothers but also to the children whom their cooperation with the police was meant to protect."

The justice says that even though the hospital patients submitted to certain tests for medical purposes - rather than law-enforcement purposes - the later use of that same information for law enforcement purposes does not violate constitutional safeguards.

(c) Copyright 2001. The Christian Science Monitor