Eleven years ago, Lori Griffin was sent to jail for distributing cocaine to a minor. That minor was her unborn baby.
Wednesday, Griffin -- and nine other women -- presented their case before the U.S. Supreme Court, arguing their constitutional rights were violated because a controversial program at a public South Carolina hospital allowed pregnant women to be tested for cocaine without their permission.
The justices have to decide whether the Medical University of South Carolina (MUSC) in Charleston was simply trying to protect infants from the devastating effects of drugs or if the officials there were cutting a secret deal with police, allowing them to search suspects illegally and ultimately arrest them.
Some 75 medical organizations, including the American Medical Association, have joined in support of the 10 women plaintiffs who are fighting the policy that was put into effect in 1989. According to that policy, doctors at this public hospital could decide whether a drug test was in order by looking at, for instance, whether the woman was seeking prenatal care or had a history of cocaine use.
If the results were positive, the women were given the choice of forced drug treatment or jail.
It was "like a police officer searching a suspect," argued Priscilla Smith, lead counsel for the women who were tested without their consent.
The police, however, were never acting as the agent of the hospital, said the hospital's attorney Robert Hood. Instead, they were only trying to help "these pathetic babies."
At issue is whether the drug tests, conducted without consent and without a court warrant, violate the Fourth Amendment, which protects against unreasonable searches.
Physicians have an ethical obligation to report the actions of a patient whom they suspect may be on the verge of injuring himself or others. "If you didn't have the police driving it [the testing], it would be OK?" asked Justice Ruth Bader Ginsberg. Smith responded that it would.
Justice Sandra Day O'Connor, too, wanted to know if the doctors were looking for medical problems "independent of law enforcement."
The unusual case arose from concerns about a massive crack cocaine epidemic in the late 1980s. The South Carolina program was d to protect infants from this drug.
"They set out to target certain people," said Smith, referring to the public hospital's largely poor and African-American clientele.
The original policy required the immediate arrest of a woman whose urine showed she was using cocaine. Then the approach was revised to give suspects the option of treatment or, more likely, jail.
But Justice Stephen Breyer asked if the MUSC drug program "probably hurt more than it helps."
In 1993, the women filed suit against the City of Charleston for its testing program. But the policy was upheld in a jury trial and later by a federal appeals court as "reasonable." Now the Supreme Court must decide whether there is a "special needs" exception here to the Fourth Amendment that would allow doctors to legally give police private medical information with a patient's consent or a court warrant.
After the 1-hour hearing, South Carolina's Attorney General Charlie Condon said that the Clinton Administration had already forced MUSC to stop clandestine drug testing. But the state Supreme Court's decision giving the fetus legal protection through child-endangerment laws allows officials there to prosecute women who endanger their unborn babies.
"We have a statewide protocol in effect, and many, many, many innocent babies are now being protected from the ravages of illegal drugs," said Condon.
However, attorney Smith said that several women who were arrested got no treatment, and some were taken out of their beds bleeding and in pain from childbirth. "If you want to produce healthy babies, and healthy pregnancies, you don't throw women in jail," she said.
An ethicist who was formerly with MUSC -- and who has actually testified against the institution -- questions the medical value of these tests. "The scientific evidence is that cocaine, actually compared to legal drugs such as alcohol and tobacco, has a very minor effect on fetal outcome," Mary Faith Marshall, PhD, tells WebMD.
"They tested me at the time of my delivery. My child didn't have any cocaine side effects," said Paula Hale, a plaintiff. Even so, Hale said she spent 28 days in jail after her baby was born
Many medical groups think the secret test drives a wedge between the doctor and patient.
"I'm frankly outraged," Mohammad Akhter, MD, MPH, director of the American Public Health Association, tells WebMD.
The Supreme Court is expected to make a decision on the case by July 2001.
