- The Washington Times - Tuesday, March 27, 2001

This is the subheader, dude.

Helplessness and danger summon rescue.

A state medical hospital in Charleston, S.C., was thus stirred by the recklessness of pregnant patients using cocaine.The illegal drug occasions congenital physical and neurological abnormalities in newborns ("crack babies"), including smaller head circumference, global hypertonia, coarse tremor, and extensor leg posture. Post-birth gross motor development is stunted, and cocaine-exposed fetuses confront a spiked risk of anxiety, delinquency and aggressive behavior.

Aiming to prevent the unfairness of life from compounding through the callousness or weaknesses of mothers, a state hospital in April 1989 commenced cocaine testing of patients receiving prenatal treatment.The tests were twice medically blessed: Mothers testing positive were referred by hospital staff to substance-abuse treatment; and needed postnatal treatment for the child could be predicted and planned.

The initial results of the testing and treatment program were unpromising .No dent was made in the incidence of cocaine use during pregnancy. Patients resisted drug counseling or dropped out after a few sessions. A jolt was obviously needed if the cocaine threat to fetuses was to be ameliorated or averted. Law enforcement was thus enlisted in the medical cause.

The ingestion of cocaine during the third trimester of pregnancy constitutes criminal child neglect under South Carolina law.The state hospital and police collaborated in fashioning a policy to threaten cocaine-positive patients with arrest and prosecution if they balked at substance abuse treatment. If the pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was 28 weeks or more, she was to be charged with possession and distribution to the fetus. If she delivered while testing positive for illegal drugs, a criminal child neglect charge would be added.

The benign drug treatment objective of the hospital-police collaboration was substantiated by the fact that only 30 of 253 women testing cocaine positive were ever arrested, and but two of those 30 were ever prosecuted. It was not a platoon in the contemporary war on drugs traveling incognito.

Several of the arrestees brought suit claiming the policy of hospital testing for cocaine coupled with sharing the results with police without a warrant and probable cause to suspect illegal use violated individual privacy secured by the Fourth Amendment. The United States Supreme Court agreed by a 6-3 margin in Ferguson vs. City of Charleston (March 21, 2001), a decision smacking more of grim zaniness than enlightenment.

Writing for the majority, Justice John Paul Stevens emphasized that warrants are the rule, not the exception, for justifying government searches (including urine testing) of persons under the Amendment. He was clearly alarmed and appalled at what he perceived as hospital treachery to prenatal patients in keeping secret its policy of sharing cocaine test results with law enforcement: "The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent."

That axiom may deserve apotheosis in a medical ethics code, but it is no part of the Fourth Amendment. It does not require the law enforcement to play by Queensberry rules. Iagos may be recruited as informants and elicit incriminating information under false pretenses. As the Supreme Court amplified in United States vs. White (1971): " police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter´s Fourth Amendment rights."

Suppose the police in Charleston had employed state hospital personnel as secret agents to investigate cocaine abuse by pregnant mothers in violation of the state´s criminal child neglect law.The hospital agents visit the homes of the pregnant with concealed electronic equipment, represent themselves as health-care officials intending to promote safe pregnancies, and elicit incriminating statements about cocaine use by playing on compassion for the fetus. Under the White precedent, the hospital perfidy leading to criminal prosecution with no drug treatment alternative is irreproachable under the Fourth Amendment. But according to Ferguson, the same type of deception in a hospital conceived with a benign as opposed to a prosecutorial purpose and featuring a pronounced drug-treatment preference to prosecution carries a constitutional taint. Intellectual tidiness is not a legal imperative, but intellectual chaos should be avoided as a concession to the limits on mental acrobatics.

The Ferguson precedent is further troublesome. Suppose urine or blood tests are developed that detect use by a mother of thalidomide or drugs potentially lethal to a fetus and made criminal under state law. Would a state hospital be prohibited from requiring pregnant patients to test for such drugs and to share the results for possible prosecution to the police? Is the Constitution a first cousin of a suicide pact for unborn fetuses?

The majority in Ferguson accepted without question the irreproachableness of laws that compel physicians and nurses to report to law-enforcement authorities suspicion of child abuse or neglect awakened by medical treatment sought by parents. The unstated and chilling distinction made by Justice Stevens to justify a different result for cocaine testing of mothers to protect the health of unborn fetuses is that the abortion-rights tractate of Roe vs. Wade (1973) has reduced them to constitutional inkblots.

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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