pass a saliva drug test Article 82 From Always Test Clean

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WASHINGTON--The U.S. Supreme Court upheld the medical privacy of pregnant women Wednesday, ruling that hospital officials and police may not conspire to secretly test patients for drugs.

In a 6-3 ruling, the court said the Constitution's protection for privacy outweighs the government's need to detect drug use, even when a fetus could be exposed.

The decision rejects a unique and controversial drug testing program begun in Charleston, S.C., in 1988, when fears of a "crack baby" epidemic reached their peak.

Nationwide, nurses and doctors urged women who were using cocaine to stop and sent addicted patients to treatment programs.

In South Carolina, officials decided to go further and prosecute mothers for child abuse if they were found to be using drugs.

Soon after the first prosecutions were announced, a nurse at Charleston's only public hospital contacted City Solicitor Charles Condon and offered to supply him with test results from female patients who had cocaine in their systems.

At least 30 women were arrested as part of a joint effort by the hospital and police. Some women were handcuffed in their hospital beds and taken away shortly after giving birth.

Ten of the women later filed a lawsuit contending the secret drug-testing policy violated their privacy rights under the 4th Amendment. They lost in the lower courts but won Wednesday before the nation's highest court. The lawyers for the women called the ruling an important victory for the "right to confidential medical care." Had Charleston's prosecutors prevailed, doctors and hospitals might have been encouraged to turn over potentially incriminating medical tests to police.

"This decision slams the door against police searches of private medical information in your doctor's office," said Priscilla Smith, a lawyer for the Center for Reproductive Law and Policy in New York, which represented the women. She said the ruling also confirms the principle that "pregnant women have the same constitutional rights as other Americans, including the right to maintain a confidential doctor-patient relationship."

The case had drawn attention because it raised the possibility that the court would decide whether the health of a fetus affected the rights of the mother.

But the court's opinion in the case of Ferguson vs.City of Charleston, 99-936, mostly sidesteps that issue.

It discusses the law on searches and seizures in the area of drug testing -- but without focusing on the special situation of pregnant women.

Justice John Paul Stevens said the Constitution's ban on unreasonable searches and seizures generally forbids "nonconsensual, warrantless and suspicionless searches." "The stark and unique fact that characterizes this case is that the [hospital's policy] was designed to obtain evidence of criminal conduct," he said. However, the police did not have reason to suspect any of these women had done anything wrong. The evidence that incriminated them was revealed only because the police were given secret access to their urine tests, he said.

Wednesday's ruling marks the second time in recent months that the court has struck down as unconstitutional a dragnet system to catch drug users.

In November, justices said that police cannot set up "narcotics checkpoints" on the highways to nab drug users. Too many innocent people are stopped and checked, the court said in its ruling in an Indianapolis case.

In 1989, the court upheld the constitutionality of forced drug testing. Train engineers who were involved in accidents could be tested for drugs, the court said, as could newly hired employees in the U.S. Customs Service. 

But despite predictions at the time, those decisions have not led to general rulings allowing drug testing of public employees. Instead, the court has retreated somewhat and returned to the view that the Constitution requires evidence that an individual has done something wrong before he is stopped and searched.

Both Wednesday's ruling and the decision striking down the narcotics checkpoints had the same 6-3 division. The majority consisted of Justices Stevens, Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

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In dissent Wednesday, Justice Antonin Scalia said that the pregnant women had consented to the medical tests and, therefore, have no right to complain of an "unreasonable" search.

He added that the police and prosecutors got involved only for the "benign purpose" of forcing women to undergo drug treatment. The damages suit against them "proves once again that no good deed goes unpunished," he said. Chief Justice William H. Rehnquist and Justice Clarence Thomas joined the dissent.

Wednesday's ruling does not finally resolve the Charleston case, however.

The U.S. 4th Circuit Court of Appeals had sided with the city on the grounds that the drug testing program was reasonable.

While overruling that conclusion, the justices sent the case back to the lower court to decide whether the women had knowingly consented to undergo medical tests whose results could be given to the police.

pass a saliva drug test - Copyright 2001, Los Angeles Times

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