Court again upholds privacy in hospital drug-testing case

Consent of patients or warrant required for search, justices rule

March 22, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court ruled yesterday that a South Carolina hospital that tested the urine samples of pregnant women for cocaine and then turned the results over to police violated their patients' right to privacy unless the women consented to the tests.

The 6-3 decision keeps alive a lawsuit filed by 10 of the women, some of whom were arrested in their hospital beds shortly after childbirth and taken to jail. A lower court must now determine whether the women knew the tests were being done.

The decision reflects what appears to be a growing sensitivity on the court to privacy issues. In recent cases, the court has ruled that police cannot set up random roadblocks to search for drugs, nor can they squeeze a traveler's luggage to feel for drugs without consent.

"This is a signal that the court will be hostile to the use of governmental actors to help the police do police work," said William Stuntz, a professor at Harvard Law School. "It's part of an emerging pattern on the court that is more protective of the right to privacy and autonomy."

The case involves a program at the Medical University of South Carolina during the late 1980s and early 1990s. Concerned about an increase in crack cocaine use by pregnant women, the hospital contacted local police and offered to help prosecute prenatal patients who tested positive for drugs.

That offer was accepted by South Carolina Attorney General Charles Condon, who was then a local prosecutor. He directed the hospital to take urine samples from pregnant patients suspected of cocaine use, screen the samples for drugs, and give the results to police.

Initially, the police arrested women who tested positive and charged them with child neglect. Usually, charges were dropped after the women entered a rehabilitation program.

Later, authorities gave the women the choice of being arrested or undergoing rehabilitation. If the women tested positive a second time, they were told, they would be put in jail. Over the course of the program, 30 women were arrested.

The arrests continued until 1993, when 10 patients filed suit under the Fourth Amendment, which generally requires police to obtain a warrant before conducting nonconsensual searches. A federal jury found that the women had consented to the tests when they agreed to provide urine samples.

The women appealed that decision to a federal appeals court, claiming that although they agreed to the urine samples they did not know the samples would be screened for drugs.

But instead of deciding the issue of consent, the appeals court ruled that the tests did not violate the Fourth Amendment because they were justified by the hospital's "special need" to protect the health of the women and their unborn children.

The Supreme Court reversed that decision yesterday. In an opinion written by Justice John Paul Stevens, the court acknowledged that a "special need" may sometimes justify a warrantless search. For instance, the court has allowed nonconsensual drug tests of railroad workers to ensure passenger safety.

But in those cases, the court said, the government's "special need" was unrelated to law enforcement. By contrast, the extensive involvement of the police in the South Carolina case demonstrated that the main purpose of the tests was to enforce the criminal laws.

"While the ultimate goal of the program may well have been to get the women in question into the 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 wrote, in an opinion that was joined by Justices Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

Hospitals may still have a duty to give police evidence of crimes that they inadvertently uncover during treatment, Stevens added. But when they gather such evidence "for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights."

Justice Anthony M. Kennedy filed a concurring opinion, while Justice Antonin Scalia filed a dissenting opinion that was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Scalia disputed the majority's claim that the tests were motivated primarily by the government's interest in law enforcement. He pointed out that the hospital had begun testing some patients for drug use before it contacted the police.

"Thus," he concluded, "the tests had an immediate, not merely an ultimate, purpose of improving maternal and infant health."

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