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Court to Review Policy That Arrests Pregnant Drug Users

By David G. Savage

Again testing the frontiers in the war on drugs, the Supreme Court agreed Monday to decide whether public hospitals and police can work together to arrest pregnant women who have used cocaine.

South Carolina is the only state that charges mothers with child abuse if their babies are born with traces of illegal drugs in their blood.

To enforce the policy, nurses and doctors at a public hospital in Charleston, S.C., volunteered in 1989 to give police the urine samples of women who tested positive for cocaine.

“Most of us assume there is a special confidentiality when you go to a doctor or a hospital. These women went to the hospital for medical care. Instead, they got arrested,” said Lynn Paltrow, a lawyer for the Women’s Law Project in Philadelphia, who sued on behalf of the women. They accused the hospital and city prosecutors of conducting illegal searches in violation of the Fourth Amendment.

Paltrow said the policy was directed almost entirely at poor, black women. Of 30 women who were arrested, 29 of them were black, she said. The one white woman arrested gave birth to a mixed-race child -- a fact noted by the nurses, she said.

In its defense, the hospital said it undertook the drug testing policy to combat the epidemic of so-called “crack babies.”

“This was a pathetic situation. These babies were being born exposed to cocaine. This was a medically driven policy to deal with a medical crisis,” said Robert H. Hood, a Charleston lawyer who represented the Medical University of South Carolina.

During the first year of the policy, women who tested positive were arrested and sometimes put in shackles immediately after giving birth. In later years, they were given the choice of drug treatment or arrest.

In 1993, after the lawsuit was filed, the hospital stopped turning over drug test results to police but prosecutors maintain that the joint effort was legal. Last year, the 4th U.S. Circuit Court of Appeals agreed and threw out the women’s claim for damages.