How To Pass A Hair Follicle Drug Test Article 31 From Always Test Clean

Friday, October 18, 2002

By DEE-ANN DURBIN, Associated Press Writer

I am very pleased to let you know that reproductive rights, drug policy reform and patients rights advocates have had an important victory in the 4th Circuit remand in the Ferguson case. In the only case heard by the U.S. Supreme Court to touch directly on the issue of prosecution of pregnant, drug-using women, the Court held that a hospital's "performance of a diagnostic test [urine drug screens] to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search [unconstitutional] if the patient has not consented to the procedure."

In this case, Ferguson v. City of Charleston, ten women challenged a policy that began in 1989 when the Medical University of South Carolina, working in collaboration with local police and prosecutors, instituted a policy of secretly searching selected pregnant women for evidence of cocaine use. Women who tested positive for cocaine were reported to the police and health care providers coordinated their in-hospital arrested on charges of child abuse or drug delivery. The defendants in the case conceded that for at least the first three months of the policy women were not offered any alternative to arrest, although policy modifications later empowered staff to have patients arrested if they did not immediately comply with treatment selected by medical staff. At the time the policy was implemented no treatment programs designed to meet the needs of pregnant or parenting women existed in the state.

A total of 30 women were arrested under the protocol. In 1994 ten women challenged the policy of testing and arresting on nine different constitutional and statutory grounds. Ultimately, the Supreme Court addressed only on the "search and seizure" claim and concluded that the hospital policy of collecting evidence did violate the women's Fourth Amendment Constitutional rights. The Court however, noted that searches may be conducted if done with a proper warrant or if the person being searched has given consent. The Court remanded the case to the 4th Circuit to determine whether or not there was evidence to support the jury finding that the women had consented to a search.

Yesterday, the 4th circuit in a 2-1 decision found that 8 of the women had not consented to a search. The majority said that one woman was out of the case because she was not searched -- rather her baby had been. (we were afraid this might happen -- and it is particularly sad since this woman, Ms. Knight, was especially humiliated and devastated by the arrest. We will have to think about whether or not we can do an appeal/cert on that point.) The Court was also unclear about the circumstances of the testing of Ms Nicholson and remanded her particular case to the trial court for further fact finding.

Not only is this decision a victory for the majority of the brave plaintiffs in the case, but it is an important victory for patients in general because the decision effectively enforces the extraordinarily high standard for searches of medical patients that the Supreme Court articulated in the Ferguson decision:

"When [state hospital employees] undertake to obtain evidence [of criminal conduct] from their patients 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, as standards of knowing waiver require."

The Court then referenced the Miranda decision, equating this patient consent requirement with the stringent Miranda warning that is supposed to specifically inform criminal suspects of their affirmative right to refuse questioning.

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