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Justices Weigh Hospital, Police Checking of Patients for Drugs


WASHINGTON — The Supreme Court took up an unusual drug testing case Wednesday that pits the privacy rights of pregnant women against the government's power to protect unborn children from danger.

Amid the "crack baby" crisis of the 1980s, a public hospital in Charleston, S.C., began working with police and prosecutors there to punish women who were using cocaine. Some were arrested and taken to jail just after giving birth.

Ten women sued the city-run hospital, alleging they were unknowingly subjected to unreasonable police searches, a violation of the Constitution's 4th Amendment. But they lost in the lower courts and their claim received a cool reception from the Supreme Court during Wednesday's argument.

It is "routine in today's world" for patients to have a urine test, said Justice Sandra Day O'Connor, questioning why this would be seen as an unreasonable search.

"This was being done for medical purposes," added Justice Antonin Scalia. "The police didn't show up and say, 'We want to find a way to bust your patients.' "

Complaint Focuses on Police Involvement

A lawyer for the women replied that her clients were not complaining about medical tests. Rather, they were upset because the test results were immediately given to the police.

The doctors and nurses "became, in effect, the police," said Priscilla J. Smith, an attorney for the Center for Reproductive Law & Policy in New York. "This program was designed by and for law enforcement."

The tenor of the oral argument showed again that the war on drugs has strong support in the high court.

During this first week of the new term, the justices have heard two cases that test the frontiers of the drug war.

In one, from Indianapolis, police are seeking the authority to stop cars at city roadblocks to check for drugs. The Charleston case tests whether a hospital and the police can work together to check patients for drugs. A majority of the justices sounded as though they will side with the police in both cases.

At one time, the Supreme Court took the view that the 4th Amendment required the police to have "probable cause" and a warrant to search for evidence of a crime. But that strict rule has faded as the justices have upheld ever broader searches for narcotics.

Kennedy Suggests Legality of Mass Drug Searches

Justice Anthony M. Kennedy, a moderate conservative who was appointed by President Reagan, suggested Wednesday that mass drug searches can be upheld if they are routine and apply to all. "A policy of testing everyone may be more sustainable," he said, because the police are not picking out suspects from a crowd.

In the South Carolina case, the U.S. Court of Appeals in Richmond, Va., sided with the hospital and ruled the searches were legal because officials had a "special need" to protect unborn children from cocaine. A lawyer for the hospital agreed, saying doctors and nurses were trying to prevent "child abuse."

"We were trying to stop a woman from doing irreparable harm to her child," said attorney Robert H. Hood of Charleston.

The liberal justices, led by John Paul Stevens and Ruth Bader Ginsburg, pointed out that the drug testing policy seemed to be directed at low-income, African American women.

For example, when the lawyer defending the policy said it was aimed at a "true medical epidemic" in the area, Stevens responded: "In only one hospital?"

Yes, the attorney conceded, only one hospital had adopted the drug testing policy for pregnant women, but others may have done so had the lawsuit not been filed.

Ginsburg wondered how calling the police would help protect a fetus since several of the women were arrested after they gave birth.

The justices will vote privately on the case, known as Ferguson vs. City of Charleston, 99-936, and issue a written ruling in several months.

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