US Supreme Court Briefs

- Ei~IIL)


pr$~ 2


No. 99-936


IN THE

Qlrnwt of t1j~ 3Thit~ ~'tat~i

CRYSTAL M. FERGUSON, et al.,
Petitioners,

V.


THE CITY OF CHARLESTON, SOUTH CAROLINA, et al.,
Respondents.


On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit


Motion of the American Public Health Association,
South Carolina Medical Association,
American College of Obstetricians and Gynecologists,
American Nurses Association, et aL,
for Leave to File Brief as Amici Curiae
and Brief Arnici Curiae In Support of Petitioners
[additional Arnici listed on inside front cover]


DAVID T. GOLDBERG
227 Garfield Place
Brooklyn, NY 11215
Telephone: (718) 789-5584
*D~4IEL N. ABRAHAMSON
AYELET WALDMAN
The Lindesmith Center
1095 Market Street, Suite 505
San Francisco, CA 94103
Telephone: (415) 554-1900



Attorneys for Amici Curiae
* (Counsel of Record)


No. 99-936
ADDITIONAL AMICI In the


National Association of Alcoholism and Drug Abuse Counselors, Inc., South Carolina Nurses Association,
National Association of Social Workers, Inc.,
Society of General Internal Medicine,
National Council on Alcoholism and Drug Dependence,
American Society of Addiction Medicine,
National Medical Association
American Academy of Addiction Psychiatry,
Association for Medical Education
and Research in Substance Abuse,
Physicians for Human Rights,
American Medical Women's Association,
Association of Reproductive Health Professionals,
Planned Parenthood Federation of America,
Society for Medical Anthropology,
California Medical Association,
California Society of Addiction Medicine,
Robert E. Arendt, Ph.D, Marylou Behnke, M.D., Maureen M. Black, Ph.D., Ira J. Chasnoff, M.D., Sterling K. Clarren, M.D., Claire D. Coles, Ph.D.,
Nancy Day, M.P.H., Virginia Delaney-Black, M.D., M.P.H.,
Fonda Davis Eyler, Ph.D., Deborah A. Frank, M.D.,
Sydney L. Hans, Ph.D., Hallam Hurt, M.D., Joseph L. Jacobson, Ph.D., Helen Johnson, Ph.D., Stephen Kandall, M.D., Bernard Z. Karmel, Ph.D., Nancy Kass, Sc.D., Barry E. Kosofsky, M.D., Ph.D., Barry M. Lester, Ph.D., Robert David Needlman, M.D., Daniel R Neuspiel, M.D., Robert G. Newman, M.D., Gale A. Richardson, Ph.D., Lynn T. Singer, Ph.D., Robert J. Sokol, M.D. and Edward Tronick, Ph.D.

SUPREME COURT OF THE UNITED STATES


CRYSTAL M. FERGUSON, et al.,
Petitioners,

V.

THE CITY OF CHARLESTON, SOUTH CAROLINA, et al.,
Respondents.




On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit


MOTION OF THE AMERICAN PUBLIC HEALTH
ASSOCIATION, ETAL., FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Pursuant to Sup. Ct. Rule 3 7.2(b), Amici physicians, nurses, public health officers, substance abuse treatment professionals, and medical researchers from around the country, and their professional associations move for leave to file the attached brief Amici Curiae in support of Petitioners seeking review of Fewuson v. City of Charleston, 186 F.3d 469 (4~" Cir. 1999).
In the decision below, a divided panel of the Fourth Circuit upheld a governmental policy whereby the trust inherent in the relationship between the patient and the treatment provider was manipulated by law enforcement authorities to obtain bodily fluids from indigent pregnant women for use as incriminating evidence. The parties and both courts below







.8

recognized that the constitutional issues presented by the policy in this case cannot properly be decided in isolation from the ~scientific, medical, and public health context from which the policy arose.
Amici have recognized expertise in the areas of the physician-patient relationship, the need to maintain the confidentiality of personal medical information, maternal and neonatal health, and the treatment and prevention of substance abuse among pregnant and parenting women. This brief is offered to illuminate the basic medical misunderstandings that infected the decision below, and to alert this Court to the unwelcome uncertainty that the panel majority has injected into the treatment provider-patient relationship, and to the real harms that this uncertainty can cause individuals, their families and their communities.
This motion is necessary because Respondents have declined to consent to the filing of this brief Amici Curiae.

Respectfully submitted,
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTEREST OF AMICI CURIAE 1
PRELIMINARY STATEMENT 1
SUMMARY OF ARGUMENT 3
ARGUMENT 8


I. MEDICAL PERSONNEL INVOLVEMENT DOES NOT JUSTIFY RELAXING FOURTH AMENDMENT REQUIREMENTS


A. Prosecutors' Purported "Health" Motivations Cannot Excuse Searches Conducted Without Warrants and Probable Cause




DANIEL N. ABRAHAMSON
DAVID T. GOLDBERG
227 Garfield Place
Brooklyn, NY 11215
Telephone: (718) 789-5584
* DANIEL N. ABRAHAMSON
AYELET WALDMAN
The Lindesmith Center
1095 Market Street, Suite 505
San Francisco, CA 94103
Telephone: (415) 554-1900
B. The Recruitment of Government-Paid
Health Providers by Prosecutors Is Not
Cause for Applying a Less Demanding
Fourth Amendment Standard 10


1. The Hospital Personnel Were Not Functioning As Medical Professionals
10
Attorneys for Amici Curiae
* (Counsel of Record)





2. The Policy Contravened Basic
Principles of Medical Practice 12


II. THE POLICY'S "BENEFITS" DID NOT JUSTIFY ITS BURDENS ON PETITIONERS'
PRIVACY 16


A. The Policy Harmed the Relationship Between Treatment Providers and Patients .. 17


B. Erosion of the Treatment Provider-Patient Relationship Undermines the Health of
Women and Children 19


C. The Policy Cannot Be Called "Effective"
For Fourth Amendment Purposes 22


D. "Medical" Urine Screens Entail A
Substantial Privacy Intrusion 25


III. COCAINE USE AMONG PREGNANT WOMEN DOES NOT PRESENT A "SPECIAL NEED" . ... 26
CONCLUSION 30
APPENDIX
TABLE OF AUTHORITIES



Constitutional and Statutory Provisions
U.S. Const., amend. 4 passim
42U.S.C.290dd-2 18
42U.S.C.9501(1)(H) 19
S.C. CODE ANN. 56-5-2940 (Law. Co-op. 1999) 23



Cases
Chandler v. Miller, 520 U.S. 305 (1997) 22
Delaware v. Prouse, 440 U.S. 648 (1979) 22
Estelle v. Smith, 451 U.S. 454 (1981) 10


Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir. 1999), cert. granted, 120 S.Ct. 1239 (2000) .. passim
Jaffe v. Redmond, 518 U.S. 1(1997) 17,26
Johnson v. State, 602 So. 2d 1288 (1992) 23





11 iii


Linder v. United States, 268 U.S. 5 (1925) 12


Michigan Dep't of State Police v. Sitz, 496 U.S. 444
(1990) 22, 23, 25
Olmstead v. United States, 277 U.S. 438 (1928) 4
People v. Hardy, 469 N.W. 2d 50 (1999) 23
Robinson v. California, 370 U.S. 660 (1962) 12
Scott v. United States, 436 U.S. 128 (1978) 8


Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602
(1989) 26
State v. Luster, 419 S.E. 2d 32 (Ga. 1992) 21


United Auto Workers v. Johnson Controls, 499 U.S. 187
(1991) 15


Vernonia Sch Dist. 473 v. Acton, 515 U.S. 646 (1995) ... 26
Washington v. Harper, 494 U.S. 210 (1990) 10
Whren v. United States, 517 U.S. 806 (1996) 8
Williams v. New York, 337 U.S. 241 (1949) 9
Wilson v. Layne, 526 U.S. 603 (1999) 26
Youngberg v. Romeo, 457 U.S. 307 (1982) 10


Other Authorities


American Academy of Pediatrics, Comm. on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639
(1990) 21


AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ("ACOG"), COMMYFrEE OPINION
55 (Oct. 1987) 21
AMERICAN MEDICAL Ass'N POLICY H-95.985 24


AMERICAN MEDICAL ASS'N, CURRENT OPINIONS OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS,
E - PRINCIPLES OF MEDICAL ETHICS 11


AMERICAN NURSES AsS'N, POSITION STATEMENT
(Apr. 5, 1992) 21


Robert Arnold et al Medical Ethics and Doctor/Patient
Communication, in THE MEDICAL INTERVIEW:
CLINICAL CARE, EDUCATION AND RESEARCH 345
(Mack Lipkin, Jr. et al eds, 1995) 17





iv v


David 3. Bimbach et al., Cocaine Screenmnn of Parturients Without Prenatal Care: An Evaluation of a Rapid ScreeninE Assay, 84 Anesthesia Analg.
76 (1997) 19


Richard 3. Bonnie & Svetlana Polubinskaya, Unraveling Soviet Psychiatry, 10 3. Contemp. Legal Issues
279 (1999) 1


D. Campbell ~ al Unrecognized "Crack" Cocaine Abuse in Prcanancy, 77 British 3. Anaesthesiology
553 (1996) 19


Claire D. Coles et al Effects of Cocaine and Alcohol
Use in Pre~nancv on Neonatal Growth and
Neurobehavioral Status, 14 Neurotoxicology and
Teratology 23 (1992) 27


Loretta P. Finnegan & Stephen R. Kandall, Maternal and
Neonatal Effects of Alcohol and Drugs in
SUBSTANCE ABUSE: A COMPREHENSIVE
HANDBOOK 529 (Joyce H. Lowinson et al eds
1997) 20


Deborah A. Frank ~ ~ Maternal Cocaine Use: Impact on Child Health and Development, 40 Advances in
Pediatrics 65 (1993) 29


SHELLY GEHSHAN, A STEP TOWARD RECOVERY:
IMPROVING ACCESS TO SUBSTANCE ABUSE
TREATMENT FOR PREGNANT WOMEN, RESULTS
FROM A REGIONAL STUDY (Southern Regional
Project on Infant Mortality, 1993) 13
Margaret E. Goldberg, Substance-abusmun Women:
False Stereotypes and Real Needs, 40 Social Work
789 (1995) 14


LAURA E. GOMEZ, MISCONCEIVING MOTHERS:
LEGISLATORS, PROSECUTORS, AND THE POLITICS
OF PRENATAL DRUG EXPOSURE (1997) 28


Hallam Hurt et al Children with In Utero Cocaine
Exposure Do Not Differ from Control Subjects On
Intelligence Testmnn, 151 Arch. Ped. Adolesc. Med.
1237 (1997) 29
Ellen Hutchins, Drtw Use During Prcanancy, 27 3. of Drug Issues 463 (1997)
28
Philip H. Jos et al The Charleston Policy on Cocaine Use Durin2 Pregnancy: A Cautionary Tale, 23 3. of Law, Med. & Ethics 120 (1995) 16


Mary Jeanne Kreek & Marc Reisinger, The Addict as a
Patient in SUBSTANCE ABUSE:A COMPREHENSIVE
TEXTBOOK 822 (Joyce H. Lowinson, et al eds
1997) 18


Aaron Lazare, Shame. Humiliation, and Stinma in the
Medical Interview in THE MEDICAL INTERVIEW:
CLINICAL CARE, EDUCATION AND RESEARCH 333
(Mack Lipkin, Jr. et al eds, 1995) 18


Barry M. Lester ~ Data Base of Studies of Prenatal Cocaine Exnosure and Child Outcome. 27 3. of
Drug Issues 487 (1997) 27



vi vii


Bertis B. Little et al., Is There a Cocaine Syndrome?
Dysmorphic and Anthronometric Assessment of
Infants Exposed to Cocaine, 54 Teratology 145
(1996) 27


Mary Faith Marshall et al Letters to the Editor, 23 3. of
Law, Med. & Ethics 299 (1995) 16


Linda C. Mayes et al The Problem of Prenatal Cocaine Exposure: A Rush to Judgment, 267 JAMA 406
(1992) 29


National Council on Alcoholism and Drug Dependence,
WOMEN, ALCOHOL, OTHER DRUGS AND
PREGNANCY (1990) 21


Marilyn C. Poland, Punishing Preanant Drug Users:
Enhancing the Flight from Care, 31 Drug &
Alcohol Dependence 199 (1993) 16


PRENATAL CARE: REACHING MOTHERS, REACHING
INFANTS 79 (Inst. of Medicine ed., 1988) 15


- PRThJCIPLES OF ADDICTION MEDICINE (Allan W. Graham,
& Terry K. Schultz, eds. 2000) 13


Andrew Racine et al The Ass'n Between Prenatal Care
and Birth Weinht Amon2 Women Exnosed to
Cocaine in New York City, 270 JAMA 1581
(1993) 20
SOUTHERN REGIONAL PROJECT ON INFANT MORTALITY,
A STEP TOWARD RECOVERY: IMPROVING ACCESS
TO SUBSTANCE ABUSE TREATMENT FOR PREGNANT
AND PARENTING WOMEN (1993) 19,20
L.G. Tribble et al Analysis of a Hospital Maternal
Cocaine Testing Policy: In Association with
Prenatal Care Utilization Patterns (Nat'l Perinatal
Ass'n 1993)


Albert 3. Tuboku-Metzger et al Cardiovascular Effects of Cocaine in Neonates Exnosed Prenatally, 13
American 3. of Perinatology 1 (1996)


U.S. DEPT OF HEALTH AND HUMAN SERVICES, CENTER FOR SUBSTANCE ABUSE TREATMENT, PREGNANT, SUBSTANCE-USING WOMEN, TREATMENT IMPROVEMENT PROTOCOLS SERIES No. 2 (1993)
19




27





16
UNITED STATES GENERAL ACCOUNTING OFFICE, REPORT TO THE CHAIRMAN, SENATE COMM. ON FINANCE,
HRD-90-138 (1990) 19


Undate on Cocaine: Part 1,10 Harv. Mental Health Letter
(Harv. Med. Sch.), Aug. 1993 29
Jacqueline Wallen, A Comparison of Male and Female Clients in Substance Abuse Treatment, 9 J. Subst
Abuse Treat 243 (1992)
14
viii ix





Gail A. Wasserman et al Prenatal Cocaine Exposure and School Me Intellinence, 50 Drug & Alcohol
Dependence 203 (1998) 29


Nancy Stewart Woods et al Cocaine Use During
Preanancy: Maternal Depressive Symptoms and
Infant Neurobehavior over the First Month, 16
Infant Behavior and Dev. 83 (1993) 27


Joint Appendix


Shirley 3. Beckett, Trial Testimony 16


Ira J. Chasnoff, M.D., Trial Testimony 12-15


Crystal Ferguson, Trial Testimony 14
Louise Haynes, M.S.W., Trial Testimony
INTEREST OF AMICI CURIA(
All parties and both courts below recognized that the legal issues presented by the policy at issue in this case cannot properly be decided in isolation from the scientific, medical, and public health context from which the policy arose. The resolution of these issues necessarily depends on an understanding of this context, and how this Court decides those issues could have direct and deleterious consequences for health and health care.
Amici are physicians, nurses, public health officers, substance abuse treatment professionals, and medical researchers, as well as state, local, and national medical and professional associations, with longstanding interest in and understanding of issues of substance abuse, pregnancy, neonatal health, and medical ethics.1 While there is great variety among Amid as to experience, expertise, and perspective on medical, scientific, and public health issues, Amici are united in their condemnation of the policy implemented at the Medical University of South Carolina in Charleston ("MUSC") and the judicial decision approving it. They join together in this brief to explain how the policy lacks foundation in medicine and science and to inform this Court of the dangers the decision below portends for treatment professionals and their patients.
14
Laura Hildebrand Trial Testimony 11
PRELIMINARY STATEMENT


Edward Horger, M.D., Trial Testimony 27
Martha Jessup, R.N., M.S., Trial Testimony 13
As will be explained, Amici are firmly convinced, based on years of clinical experience and rigorous scientific study, that policies such as the one at issue in this case are medically




No entity or counsel apart from those whose names appear on this Brief have contributed monetarily or substantively to its production.

Sup. Ct. R. 37.6.
Descriptions of the Amid are set forth in the Appendix to this
brief.
x 1


unsound and yield adverse health consequences, including for
indeed, especially for the women and children in whose interests they are purportedly carried out.
Amici are especially troubled by the law enforcement rules that governed the medical and hospital personnel under the policy at issue in this case. The policy's purported concern for maternal and fetal health should not, in and of itself, excuse incursion into Petitioners' basic privacy rights as a matter of medical practice, professional ethics, and law.
Indeed, for all the professed concern for health, the policy showed a deplorable lack of interest in the medical, psychological, and behavioral problem it sought to address substance abuse and a surprising incuriosity about whether the approach taken which placed patients at risk of years of incarceration had any prospect of achieving its avowed purpose.
The decision below, though evidently influenced by medical considerations to the point of excusing Defendants from Fourth Amendment responsibility based on their health-related motivations has unsettled not only the law of Search and Seizure but also key understandings governing both the pursuit and provision of health care. Specifically, the appellate court's approval of the policy as constitutional and reasonable has injected unwelcome uncertainty into doctor-patient relationships, especially those involving patients at risk of criminal liability and has, in the name of advancing health interests, complicated the relationship between the health care system and the criminal law.
Although Amici believe it is important that legal rules appreciate the nature of medical practice, judicial solicitude of the sort exhibited by the decision below can oniy be appropriate, if at all, when physicians are truly engaged in medical treatment, i.e., when exercising independent professional judgment, subject to the full range of ethical
restraints and responsibilities. When, as here, physicians, nurses, and hospital administrators are compelled to abdicate their professional roles and assist in a campaign to arrest and prosecute their patients, the dangers to individual freedom multiply, and special vigilance not solicitude from the judiciary is in order.
SUMMARY OF ARGUMENT
As this Court has long recognized, the imperatives of the practice of medicine and those of the legal system do not always travel together. This case, however, presents no such tension. Here, the central concerns of the Fourth Amendment in securing the individual against improper governmental intrusions on personal privacy, the basic tenets of professional ethics directing that health care providers uphold the trust and confidence placed in them by patients, and society's strong interest in promoting public health all teach the same lesson:
government physicians and nurses should not act as agents of law enforcement, nor should they use "routine" medical examinations to covertly gather evidence for use against patients in criminal proceedings.
Rather than perceive the special dangers that inhere when law enforcement officers make hospital decisions and require health care providers to help build prosecutors~ cases against their patients, the decision below took a very different view. The panel majority essentially assumed that the physicians' and nurses' participation in the challenged policy somehow diminished the potency of the constitutional threat. Thus, the court below applied a more forgiving, "special needs" standard to the policy at issue. In deciding that the policy would oniy be reviewed for its "reasonableness," the Court of Appeals pointed both to the presumed motives of the governmental actors responsible, i.e., the court's belief that concern for fetal health (and not "vindictiveness") animated their actions, and to their professional identities. i.e., the fact



2 3


that many of the governmental actors who carried out the policy wore doctors' and nurses' uniforms, rather than those of police officers.
Taken separately or together, Amici submit, these considerations should not have excused Defendants from compliance with the privacy protections the Fourth Amendment presumptively imposes on law enforcement efforts. First, "good" motives, including the asserted concern for health, may not in themselves exempt a policy from otherwise applicable Fourth Amendment requirements. If the less demanding "special needs" exception were triggered whenever government actors could show that their ultimate concern was for the wellbeing of the person searched, or that of a third party' little would remaln of the constitutional "rule," that the absence of probable cause or a warrant renders a search unconstitutional per se. Indeed, the answer to any suggestion that well-intentioned government actions should be subject to more forgiving Fourth Amendment scrutiny was forcefl.illy stated many years ago:
Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.
Olmsteadv. United States, 277 U.S. 438,485 (1928) (Brandeis, 3., dissenting).
Nor was the decision below correct to assume that the conscription of government-employed health professionals to carry out the policy automatically imparted to it a "medical" or therapeutic character, let alone one that provided benefits to parents, children or society. On the contrary, the policy required physicians and nurses to choose between their loyalty
to patients and their obligation, as law-abiding citizens, to follow the policy implemented by law enforcement officials at the Medical University of South Carolina. This policy depended at its core on compelling health care professionals to abandon their duties to patients. It is evident that the policy's stated aim of "changing human behavior through legal intervention" could hardly have been attempted without a broad suspension of ethical obligations including, among others, the core duties to deal honestly with patients, to safeguard their confidences, and to advocate on patients' behalf.
Nor could the policy rightly be described as "medical," based on its understanding of the problem and choice of approach. Although substance abuse treatment may not be a field characterized by lockstep uniformity of professional judgment, the policy at issue here departed drastically from a basic, widely shared understanding of what may be considered medically responsible "treatment." The core premise of the policy that the patients who sought prenatal care could stop themselves from ingesting drugs simply as a result of being warned of the negative consequences that could befall them (or their children), or by being threatened with even more dire consequences is wholly inconsistent with medical knowledge about drug dependency, its causes and most promising treatment approaches. Indeed, the policy was formulated in defiance of the counsel of the independent substance abuse treatment expert, Dr. Ira Chasnoff, whose input Defendants had solicited.
No effort was made to verify untested initial hunches about the scope or senousness of the problem of in utero exposure to cocaine or the validity of the criteria for selecting the patients who were to be tested. No effort was made to properly assess the scope and severity of the substance use of the women who tested positive for cocaine, or to tailor treatment options to the particular needs of individual patients.



4 5


And no effort was made to incorporate therapeutic approaches that in 1988 already had been shown to be particularly effective with pregnant drug-dependent women. At its inception, the policy provided for arrest of women who had been denied ~y real option to obtain treatment, and when a "treatment" element was belatedly inserted into the policy (in apparent response to concerns about unfairness), it was manifestly unsuited to the medical needs of the individuals involved.
The policy at issue and the judicial decision upholding its legality share a defining error: the failure to take account of the special ethical and medical significance of the relationship between patient and health care provider. While the ethical duties of honesty and confidentiality ultimately rest on principles of morality, their practical importance to the daily delivery of health care is immense. Competent health care cannot be rendered unless a patient trusts her care giver sufficiently to share medically relevant, but potentially embarrassing (or incriminating) information; or, for that matter, unless she is willing to see a treatment provider in the first place. This necessary trust does not attach automatically. It must be earned and sustained. The challenges of establishing this relationship are particularly formidable where a patient is indigent, drug-dependent, or pregnant; or, as were many Petitioners here, all three. Research and clinical experience teach that when, as here, the personal risks of seeking medical care are ralsed to intolerably high levels, it is more likely that prenatal care and patient candor and not drug use will be what is deterred, often with tragic health consequences.

As with the policy itself, the decision to uphold the policy's reasonableness evinced scant regard for the importance of the treatment provider-patient relationship. Both that decision's assertion that the burden on individual privacy involved here was "mimmal" and its finding that the policy was in the "public interest" ignored the real dangers posed to this
relationship. Indeed, its notion that urine tests have become a "routine part of a medical examination" presupposes the very relationship built on trust and confidence that the policy did much to unravel. Similarly, it was only by ignoring the critical defects of the policy and by draining the term of its ordinary meaning that the decision below was able to pronounce the policy "effective~~ as a matter of constitutional law.
Finally, explicit in Respondents' defense of the policy and (at least) implicit in the "special needs" conclusion of the Fourth Circuit were assumptions that (1) exposure to cocaine in utero presents health risks different in kind from those threatened by ingestion of other legal and illegal substances and (2) the policy challenged here was truly a last resort, indeed the "only effective treatment" available. In point of fact, Defendants' policy was neither "treatment" nor "effective" treatment, and any implication that more accepted medical approaches had been tried and failed is simply incorrect.
To the extent that the decision below construed "beyond the normal needs of law enforcement" to mean that maternal cocaine use was uniquely dangerous "criminal" behavior, against which ordinary law enforcement tools were impotent, that assessment was erroneous. Although Amici do not wish to minimize the risks posed by in utero exposure to different substances, whether alcohol, tobacco, cocaine, excessive sweets, salts, etc., or in having this Court opine on unresolved scientific questions relating to the relative risks posed by different substances, it is important to note the lack of scientific basis, in 1989 through to the present, for the assumption that so plainly animated the policy and its defense: that the dangers of maternal cocaine use are fundamentally different from or more serious than other behaviors that may pose risk of fetal harm. Without denying the obvious advisability of protecting infants from exposure to potential teratogens, scientific research is increasingly finding that the alleged "crack baby" crisis that




6 7


impelled prosecutors to override the ethical responsibilities of physicians and nurses to patients, was drastically overstated.
ARGUMENT
I. Medical Personnel Involvement Does Not Justify Relaxing Fourth Amendment Requirements
A. Prosecutors' Purported "Health"
Motivations Cannot Excuse Searches
Conducted Without Warrants and Probable
Cause
To the extent that the decision below held that "medical" motives sufficed to trigger the "special needs" analysis, little discussion is required to show that to be error. If only police and prosecutors had been involved, the fact that particular individuals among them were "motivated by a desire to protect the health of children born at MUSC" would have scant, if any, Fourth Amendment significance. To the contrary. it is black letter law that government actors' subjective motives are irrelevant under the Fourth Amendment, see Whren v. United States, 517 U.S. 806 (1996), and it is no more plausible that "good intentions" could redeem a legally unreasonable search than that "[s]ubjective intent ~one... [could] make otherwise lawful conduct illegal or unconstitutional." Scott v. United States, 436 U.S. 128, 138 (1978).
Indeed, if concern for third-parties' well-being were sufficient to trigger the "narrow" "special needs" exception, very little would remain of the Fourth Amendment rule. It can be hoped that it is only the rare case where the prosecutors act "vindictively." Nor would the prosecutor's testimony insisting that he was more concerned with "changing behavior" through "legal intervention" than with obtaining convictions and sentences alter the analysis. An interest in rehabilitation, rather than retribution, does not remove a prosecutors' actions from
the realm of "ordinary law enforcement." See Williams v. New
Y~, 337 U.S. 241, 247-48 (1949).2
Finally, although it may be true that many of the arrests under the policy did not ripen into full-blown prosecutions yet another basis advanced for distinguishing this policy from ordinary crime control efforts that fact does not alter the policy's legal character. Even today, Defendants do not deny that they intended to prosecute those women who did not change their behavior to the prosecutor's satisfaction. Indeed, even if there was no intention to seek convictions, the need for Fourth Amendment protection would not recede: being arrested much less jailed on criminal charges should not be easily brushed aside under any circumstances, let alone those giving rise to this case. Individual Petitioners were subjected to degrading, non-medical, wholly unnecessary and even dangerous handling by the police. Various of them were shackled to their hospital beds, arrested shortly before or immediately after giving birth, often while still dressed in hospital gowns and still suffering pain and bleeding from the childbirth.



2 Although the panel majority concluded that the policy did not inflict punishment for its own sake, the evidence illustrates that the policy did seek to achieve another cardinal purpose of the criminal law: specific and general deterrence. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 186 (1963) (describing deterrence as "an interest always thought to be furthered by the imposition of punishment for crime"). There was abundant testimony to that effect, and no policy other than deterrence could fully explain how arresting some of the patients after they gave birth served Defendants' professed purposes. Indeed, the Fourth Circuit majority itself
stated, in upholding the policy against plaintiffs' privacy claim under the Due Process Clause, that "[ut is well settled that a state has a compelling interest in the identification of law breakers and in deterring fi.iture misconduct." Femuson v. City of Charleston, 186 F.3d 469, 483 (4U~ Cir. 1999), cert. granted, 120 S.Ct. 1239 (2000).



8
9


B. The Recruitment of Government-Paid Health
Providers by Prosecutors Is Not Cause for
Applying a Less Demanding Fourth
Amendment Standard
The manifest constitutional unimportance of purportedly "benign" motives strongly suggests that the decision to apply the "special needs" standard was driven by the fact that many of the government actors in this case were medical personnel and that the searches were carried out by physicians and nurses, in a hospital setting. It is wrong to assume that the involvement of doctors requires less demanding Fourth Amendment review. To the contrary, when physicians and nurses are compelled to abandon their roles as protectors of and independent advocates for their patients' health interests and instead join forces with police and prosecutors, the dangers to freedom and well-being are heightened, not diminished. The need for vigilance may be even greater when the medical staff works for the state. See,..~g, Richard 3. Bonnie & Svetlana Polubinskaya, Unravelina Soviet Psychiatry, 10 3. Contemp. Legal Issues 279 (1999); cf. Estelle v. Smith, 451 U.S. 454 (1981). The decision below cursorily assumed what it should have required Defendants to prove: that their policy was, in its design, and execution a genuinely "medical" one and that the patient protections inherent in the provision of medical care made full enforcement of Fourth Amendment safeguards unnecessary.
1. The Hospital Personnel Were Not
Functioning As Medical Professionals
"The mere fact that a decision is made by a doctor does not make it 'certain that professional judgment was in fact exercised."' Washmunton v. Harper. 494 U.S. 210, 253 (1990) (Stevens, 3., concurring in part and dissenting in part) (quoting Youn~berg v. Romeo, 457 U.S. 307, 321 (1982)). The record in this case makes clear that the policy required medical
personnel (1) to decide who among their patients would be subject to search and risk of prosecution; (2) to preserve the "chain of custody" of the urine samples taken from Petitioners and other patients, so that the samples could be probative evidence in a criminal proceeding; and (3) to track whether there was "legal grounds to arrest" the individual patients. Hildebrand Tr. 147, Joint Appendix (hereafter "JA") 617-619.
The policy's very nature and design required that physicians and nurses renounce their ethical responsibilities to patients and act in a manner that precludes any suggestion that they were rendering "medical treatment." The American Medical Association's Code of Medical Ethics requires physicians to act in the best interest of individual patients, to "deal honestly with patients", and to "safeguard patient confidences". AMERICAN MEDICALASS'N, CURRENT OPINIONS OF THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, E -PRINCIPLES OF MEDICAL ETHICS (Preamble). See also id. at
10.01. Physicians are also duty-bound to protect and foster patients' free, uncoerced choices in pursuing treatment, to treat patients equally, and to advocate on the patient's behalf. Id.
The policy respected none of these ethical instructions. Instead, it prompted care providers to be dishonest in their dealings with patients and to use explicit promises of nondisclosure as well as the trust inherent in their professional relationships to extract private and potentially inculpatory information. The policy failed to assure that the patients' consent to the urine screens was informed by the full range of relevant information. The policy short-circuited health providers' obligations to obtain suitable, individualized treatment for the patients who entrusted their care to them. Medical personnel were even compelled to turn patients over to police after they had given birth behavior that was inconsistent with even the ostensible rationale for the policy with no apparent regard for the health consequences ofj ailing




10 11


the mother of a newborn. Finally, with respect to the duty to treat patients equitably, the policy was confined to the overwhelmingly poor and disproportionately non-white group of patients seeking care at a public hospital. These indigent persons had few, if any, other health care providers to turn to. The policy required medical personnel to yield their independence of judgment and ally themselves with the interests of law enforcement officials rather than those of the patients who had come to the hospital seeking prenatal care they could not afford to purchase on the private market.
2. The Policy Contravened Basic Principles of Medical Practice
For nearly a century, the medical profession has understood that drug addiction is a disease, not simply the product of a failure of individual willpower. That understanding has received specific endorsement in the opinions of this Court. See Linder v. United States, 268 U.S. 5, 18 (1925) (explaining that drug dependent persons suffer from a disease and should be treated medically); Robinson v. California 370 U.S. 660, 667 n.8 (1962) (stating that narcotic addiction is an iliness which may be contracted "innocently or involuntarily"). See also Chasnoff Tr. 26-27, JA 294-96 ("the process of addiction is ... not one of rational thought. It's not one of saying: if you keep using cocaine ... or keep using alcohol here is what is going to happen to you. That doesn't work any better than saying if you keep smoking cigarettes you're going to die of lung cancer... It's a disease process that takes significant treatment and intervention in order to overcome.")
Like other diseases, drug dependency can be controlled and overcome through medical treatment, but for such treatment to be successful it must be informed by a rigorous understanding of the medical, psychiatric, and social dimensions of substance abuse, the interrelationship between
addiction and other medical problems, and the efficacy and limitations of various diagnostic instruments and various treatment approaches. See ~enerallv PRINCIPLES OF ADDICTION MEDICINE (Allan W. Graham, & Terry K. Schultz, eds. 2000). When, as here, the crafters of a policy aimed at combating substance abuse have no special training in treating substance abuse, it is incumbent upon them to recognize the limits of their expertise and not simply codify their uninformed hunches.
A starting point of any medical treatment of persons with substance abuse problems must be the recognition of the enormous extent of individual variation. See Chasnoff Tr. 27, JA 296 ("In a process of addiction treatment, [there] must be individualized treatment. You must consider all circumstances for the individual.") Many persons with addiction problems are dependent on more than one substance, and many have medical conditions that must be treated alongside their drug dependancy, such as trauma, depression, hepatitis, or HIV. In many cases, substance abuse is also aggravated by non-medical problems such as lack of adequate education, job skills, employment opportunities, familial support, public assistance and shelter. SHELLY GEHSHAN, A STEP TOWARD RECOVERY:
IMPROVING ACCESS TO SUBSTANCE ABUSE TREATMENT FOR PREGNANT WOMEN, RESULTS FROM A REGIONAL STUDY
(Southern Regional Project on Infant Mortality. 1993). Often the greatest favorable impact for an individual's substance abuse can be achieved by addressing these other aspects of the patient's condition.
For nearly three decades and thus for many years before the policy at issue here was conceived researchers have tracked the special treatment needs of pregnant, drug-dependent women, and many successful treatment programs (though not nearly enough to meet the need) are in operation across the country. Jessup Tr. 79, JA 710. Pregnant drug-dependent women suffer from depression at high rates and from low self-




12 13


esteem, and many experience intense guilt and sadness about the fetal health consequences of their substance abuse. In all cases, their decision to seek prenatal care is itself a highly positive step. And because such patients often lack the self-confidence that is important for completing treatment, it is particularly critical that they form a strong 'Therapeutic alliance" with those helping them.
Also, important differences have been found among the populations of men and women with substance abuse problems, indicating distinctive treatment approaches are often in order. For example, large numbers of drug-dependent women have been victims of sexual or other physical abuse, ~, Jacqueline Wallen, A Comparison of Male and Female Clients in Substance Abuse Treatment, 93. Subst Abuse Treat 243 (1992), and women with substance abuse problems are far more likely than their male counterparts to have childcare responsibilities. See Chasnoff Tr. 31, JA 296 (contrasting substance-dependent men, who say, "I have got to get into treatment, where do I go," with women who often say "okay, I'm ready for treatment... .what do I do with my kid"); Ferguson Tr. 194, JA 470 ("I had two kids at home. Six weeks is a long time if you don't have someone to take care of your kids"). For women with children, studies have shown that treatment outcomes improve substantially when treatment programs take into account patients' needs for transportationto appointments,job training, primary medical care, education, child care, and medical care for infants and children. Margaret E. Goldberg, Substanceabusin2 Women: False Stereotynes and Real Needs, 40 Social Work 789 (1995).
The search and arrest policy at issue here did not proceed from sound premises. Those involved in its development had no relevant expertise and made scant effort to consult those who were knowledgeable. See Haynes Tr. 64, JA 601-02 (failing to seek input from Director of the Office of
Women's Services for SC Commission on Alcohol and Drug Abuse). Indeed, the one prominent expert they did contact expressly urged Defendants not to pursue the policy, Chasnoff Tr. 24, JA 294, warning that the arrest policy would "in fact drive women out the treatment programs and out of prenatal care" id and that 'just focusing on cocaine" would not "move[] [Charleston] toward.., the stated outcome, improving the health of the child." ChasnoffTr. 14, JA 283.
Before acting, Defendants made no effort to substantiate their sense that cocaine exposure among neonates was on the increase or, for that matter, that such children were, in fact, suffering health problems distinct from other children born to the hospital's impoverished patient population. The screening criteria used to decide which women risked arrest and criminal liability were entirely unscientific. Indeed, the hospital never conducted universal drug testing of pregnant women or newborns. Thus, Defendants had no way of knowing whether there was any actual increase in cocaine use by pregnant patients, whether there was any increase in health problems that could be associated in newborns, or whether the testing criteria were effective in identifying cocaine users.3
Furthermore, Defendants had no evidence on which to base their belief that the arrest policy would have its hoped for deterrent effect. In fact, the policy was continued despite the absence of studies demonstrating the efficacy of arresting pregnant women and a growing body of research predating the policy's implementation that threat-based approaches do not work. See PRENATAL CARE: REACHING MOTHERS, REACHING INFANTS 79 (Inst. of Medicine ed., 1988) ("Pregnant [substance



It should also be noted that testing and prosecuting only females raises serious concerns, in light of evidence that paternal exposure to teratogens can pose health risks to fetuses. Cf. United Auto Workers v. Johnson Controls, 499 U.S. 187 (1991).



14 15


abusers] in particular may delay care.., because they fear that if their use of drugs is uncovered, they will be arrested.. .
See also Marilyn C. Poland, Punishing Pregnant Drug Users:
Enhancing the Flight from Care, 31 Drug & Alcohol Dependence 199 (1993); U.S. DEPT OF HEALTH AND HUMAN SERVICES, CENTER FOR SUBSTANCE ABUSE TREATMENT, PREGNANT, SUBSTANCE-USING WOMEN, TREATMENT IMPROVEMENT PROTOCOLS SERIES No. 2 (1993). Indeed, public health organizations and government agencies, treatment professionals and scientific researchers resoundingly repudiated punitive strategies.
When MUSC's own resident bioethicist later reviewed the policy, she concluded that "no evidence suggests that this particular policy promoted healthy pregnancies or reduced costs, instead the policy alienated a patient population. . .
Mary Faith Marshall et al., Letters to the Editor, 23 3. of Law, Med. & Ethics 299-300 (1995). See also Philip H. Jos et al The Charleston Policy on Cocaine Use Durmn~ Pregnancy: A Cautionary Tale, 23 3. of Law, Med. & Ethics 120 (1995).
Even when a therapeutic component was belatedly added, no attempt was made to adapt the "treatment" to the patients' individualized medical needs. Instead, all patients were referred to the same program, one developed by individuals with no experience or expertise in treating pregnant women. Beckett Tr. 237-238, JA 57 (program operators "learned through the process of working with the clients exactly what we were up against").
II.
The Policy's "Benefits" Did Not Justify Its Burdens
on Petitioners' Privacy
Although the decision below was wrong to treat the policy as entitled to consideration under the standards established in this Court's "special needs" decisions, that error might well have been harmless had the appeals court fairly applied those cases' teachings in considering constitutional
"reasonableness." Instead, the panel majority fixed on the importance of the policy's stated aim and slighted or ignored entirely the extent of its affront to personal privacy, the important ways that it did not (and, by design, could not have) met its objectives, and the manner by which it caused hard-to-repair damage to public health and medical practice.
A. The Policy Harmed the Relationship Between Treatment Providers and Patients
The fundamental error infecting both the policy and the judicial decision approving it is the failure to respect the importance of the therapeutic relationship between patients and their treatment providers. Although, as discussed above, the obligations of loyalty, confidentiality, and candor that characterize that relationship are ethical and fiduciary imperatives, they also serve a critical, practical purpose in the effective delivery of health care. As this Court recognized in Jaffe v. Redmond. 518 U.S. 1(1997), confidentiality and trust are not solely matters of principle: "the mere possibility of disclosure [of patients' confidences] may impede development of the.. . relationship necessary for successful treatment." Id. at 10.
To make diagnoses and treat patients effectively, the physician must obtain sensitive information about a patient. A patient must be willing to tell a physician, who is often a total stranger, about such matters as drug usage . . . and to allow the physician to examine intimate parts of his or her anatomy. The promise of confidentiality encourages patients to disclose sensitive subjects to a physician without fear that an embarrassing condition will be revealed to unauthorized people....

Robert Arnold, et 4., Medical Ethics and Doctor/Patient Communication. in THE MEDICAL INTERVIEW: CLINICAL CARE, EDUCATION AND RESEARCH 345, 365 (Mack Lipkin, Jr. et al.



17
16


eds., 1995); Aaron Lazare, Shame. Humiliation, and Stigma in the Medical Interview, in id. at 333.
Defendants' policy played upon and misleadingly fostered patients' well-founded assumption that their relationship with their health care providers was one of trust. Such assumptions, however, are fragile and cannot long survive breaches of confidentiality of the sort involved here. Even the possibility that treatment professionals will share personal medical records and test results with police let alone that they might perform such tests with the purpose of obtaining incriminating evidence does lasting harm to the relationships necessary for medical care and is injurious to the broader public health.
The prospect that confidentiality might be breached (with potentially harsh penal consequences) effects patient care in another important way. Not only are persons needing treatment deterred from seeking medical care, but those who do see physicians and nurses are less likely to provide the sort of candid disclosure that is often vital for effective medical treatment.
Unsurprisingly, what is true about patients generally, applies with particular force to those with substance abuse problems:
It is quite clear that part of treating [a chemically dependent person] as a patient includes embracing all of the appropriate ethical constraints of health care delivery... . Possibly at the top of the list of ethical issues that are of very special and fundamental importance to this group of patients is the appropriate maintenance of confidentiality.
Mary Jeanne Kreek & Marc Reisinger, The Addict as a Patient, in SUBSTANCE ABUSE: A COMPREHENSIVE TEXTBOOK 822, 826-27 (Joyce H. Lowinson,~I~1. eds., 1997). Cf. 42 U.S.C.
290dd-2 (prohibiting federally assisted drug-abuse treatment
programs from divulging patient identities and records); id. at 950 l(1)(H) (codifying patients' "right to confidentiality" of mental health records).
This is even more urgently the case when drug-dependent patients are pregnant. Such patients are particularly reticent to see physicians, and are especially reluctant to give accurate information concerning the nature and extent of their drug use. See SOUTHERN REGIONAL PROJECT ON INFANT MORTALITY, A STEP TOWARD RECOVERY: IMPROVING ACCESS TO SUBSTANCE ABUSE TREATMENT FOR PREGNANT AND PARENTING WOMEN 21 (1993). See also UNITED STATES GENERAL ACCOUNTING OFFICE, REPORT TO THE CHAIRMAN, SENATE COMM. ON FINANCE, HRD-90-138, at 9-10 (1990)
([S]ome drug-using women are now delivering their infants at home in order to prevent being reported to... authorities"). Indeed, research has found that the Charleston policy itself had this effect. See L.G. Tribble et al Analysis of a Hospital Maternal Cocaine Testing Policy: In Association with Prenatal Care Utilization Patterns (Nat'l Perinatal Ass'n 1993).
B. Erosion of the Treatment Provider-Patient Relationship Undermines the Health of Women and Children
Reluctance to seek medical treatment or confide fully in those providing such treatment can have serious adverse health consequences for pregnant women and their fetuses the very health interests the policy purported to advance. Open communication with treatment providers regarding drug use is necessary to ensure optimum safety before, during and after deliveries. See David J. Bimbach et al Cocaine Screening of Parturients Without Prenatal Care: An Evaluation of a Rapid Screening Assay, 84 Anesthesia Analg. 76 (1997) (patients using cocaine "may have untoward responses to anesthesia"); D. Campbell et al Unrecognized "Crack" Cocaine Abuse in Pregnancy, 77 British J. Anaesthesiology 553, 555 (1996)



18 19


(eliciting concrete information about drug use is important because the "interaction of cocaine with other local anaesthetics makes the calculation of a safe maximum dose difficult").
By contrast, when substance abuse, including cocaine use, is known to care givers, they can focus on providing a number of proven interventions that substantially increase the health outcomes for children after delivery. One of the most effective weapons against infant mortality is early, high-quality, comprehensive prenatal care See ~ SOUTHERN REGIONAL
PROJECT ON INFANT MORTALITY, A STEP TOWARD RECOVERY:
IMPROVING ACCESS TO SUBSTANCE ABUSE TREATMENT FOR PREGNANT AND PARENTING WOMEN 6(1993). Indeed, prenatal care has been shown to markedly improve pregnancy outcomes among women with addictions: pregnant women who use cocaine, among other substances, but who have at least four prenatal care visits have been found to significantly reduce their chances of delivering low birth weight babies. Andrew Racine et aL, The Ass'n Between Prenatal Care and Birth Weight Among Women Exnosed to Cocaine in New York City, 270 JAMA 1581, 1585-86 (1993).
Even if the pregnant patient does not reduce or discontinue drug use, health risks associated with prenatal drug exposure can be mitigated substantially through prenatal care and counseling if the patient embraces the therapeutic relationship. 14. Adequate parenting skills and a supportive environment also appear to help lessen the risk of serious harm. ~ ~ Loretta P. Finnegan & Stephen R. Kandall, Maternal and Neonatal Effects of Alcohol and Drugs in SUBSTANCE ABUSE: A COMPREHENSIVE HANDBOOK, sunra at 529. In short, a climate of confidentiality is essential if patients are to disclose drug-use and/or seek continued care and counseling from health professionals in order to reduce the potential harms caused by substance use during pregnancy.
This accumulation of clinical evidence as to the special barriers to, and special benefits of full disclosure by pregnant women with substance abuse problems has led those who have studied this issue to conclude, with an unusual degree of unanimity, that punitive approaches such as the one here are not merely ineffective, they are counterproductive. In fact, Amici and every other prominent public health and medical organization to have given the subject serious consideration have rejected the notion of turning to the criminal justice system to address drug use during pregnancy. See, ~ National Council on Alcoholism and Drug Dependence, WOMEN, ALCOHOL, OTHER DRUGS AND PREGNANCY (1990) ("[A]
punitive approach is fundamentally unfair to women suffering from addictive diseases and serves to drive them away from seeking both prenatal care and treatment for their alcoholism and other drug addictions. It thus works against the best interests of infants and children.. . ."); AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS ("ACOG"), COMMYITEE OPINION 55 (Oct. 1987) (resorting to courts "is almost never justified" in treating pregnant women); American Academy of Pediatrics, Comm. on Substance Abuse, Drug-Exposed Infants, 86 Pediatrics 639, 642 (1990) ("The public must be assured of nonpunitive access to comprehensive care which will meet the needs of the substance-abusing pregnant woman and her infant."); AMERICAN NURSES ASS'N, POSITION STATEMENT (Apr. 5, 1992) (opposing "any legislation that focuses on the criminal punishment of the mothers of drug-exposed infants..
The threat of criminal prosecution is counterproductive in that it prevents many women from seeking prenatal care and treatment for their alcohol and other drug problems.") S.~ generally, State v. Luster, 419 S.E. 2d 32, 35 n.2 (Ga. 1992) (listing medical and public health organizations opposing the prosecution of women for cocaine use during pregnancy).





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C. The Policy Cannot Be Called "Effective" For Fourth Amendment Purposes
The decision below did not advert to this remarkable scientific and professional consensus that police-centered and prosecution-based approaches cause more harm than good for the children exposed to drugs in utero. The panel majority ignored the evidence that the policy was fundamentally misguided and could not have worked, as well as reports that the policy, in practice, failed to achieve its intended effect. Rather, the Fourth Circuit majority summarily pronounced the policy "an effective way to identify and treat maternal cocaine use," going so far as to characterize it as the "only effective means available . . . to reduce health effects on children exposed to cocaine in utero." Ferguson, 186 F.3d at 478 (emphasis added). No support for this bold assertion appears in the decision. Indeed, there could be none. Instead, the panel majority essentially held that substantial privacy invasions pass constitutional muster irrespective of whether the policy actually achieved its purported goal.

Although the decision correctly cited this Court's opinion in Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) for the proposition that the Fourth Amendment imposes no obligation on government actors to implement the most effective policy, that decision gave no license to disregard evidence that a policy has effects directly contrary to its purpose. Cf. Chandler v. Miller, 520 U.S. 305, 306 (1997) (policy was not "well designed" to catch lawbreakers and was not a "credible deterrent").
Unlike in ~iI~, where claims of ineffectiveness were largely predicated on the low percentage (in absolute terms) of drunk drivers detected, ~ 496 U.S. at 445 (distinguishing Delaware v. Prouse, 440 U.S. 648 (1979)), this case involved the singling out of particular individuals for a far more momentous invasion of privacy. Moreover, in cases such as
Sitz which involved stopping motorists and checking for intoxication, deterrence plays an important and unambiguously positive role in the policy's efficacy: the desire not to be apprehended can lead drivers either not to become inebriated in the first place or make those who do become inebriated more likely to stay home. But here, the consequences of drug-dependent pregnant women's "staying home," i.e., not seeking prenatal care, are calamitous for both mother and fetus, as are the costs of evading detection through dishonesty to a treating physician.4
Despite its sweeping pronouncements concerning the policy's effectiveness, the decision below evaded the panel's acknowledged responsibility to evaluate the "effectiveness of the policy.. ." Ferguson, 186 F.3d at 477. Instead, the panel majority's consideration of the issue took a surprising turn, insisting that the court's responsibility was confined to deciding whether the process of urinalysis is "effective." Id. at 478 n.8.




"At least two other distinctions warrant mention. First, although Amici are deeply concerned about alcohol-dependency as a disease, it remains true that a substantial portion of those who engage in driving while intoxicated are not alcohol-dependent, and even those who suffer from the disease of alcoholism are not required by law to refrain from either drinking or driving, only from doing both at the same time. There is no dispute that the targets of Charleston policy were exclusively or nearly exclusively pregnant drug-dependent women, and that the nature of drug dependency during pregnancy leaves no room for any similar accommodation. Cf. Johnson v. State, 602 So. 2d 1288, 1294 (1992) ("a woman may abort her child or avoid prenatal care or treatment out of fear of prosecution.") ~ also PeoDle v. Hardy, 469 N.W. 2d 50 (1999). Second, it bears mention that, despite the documented threat to human life posed by intoxicated driving, the sentences for first-time offenders are far less stiff than those which Petitioners confronted. See S.C. CODE ANN. 56-5-2940 (Law. Coop. 1999) (imposing a fine of $300 or imprisonment of not less than 48 hours and no more than 30 days for first offense).



22 23


AlthoughAmici do not question that urine screens, when properly conducted, can yield evidence of prior exposure to drugs, it cannot be said that urinalysis itself is a way to "treat" substance use generally, or maternal drug use specifically. Knowing that a policy relies on urine testing says nothing abut whether patients are provided with effective treatment: urine screen results could be thrown away; they could be used for medical research purposes only; they could be used for voluntary counseling of patients, or for a more aggressive medical approach; or, as here, they could be used as the principal part of a policy predicated on "legal intervention." It is also patently absurd to place the same diagnostic label of "addiction" on individuals whose only commonality is a single toxicological result, which even if accurate, cannot distinguish between the first-time-ever user and the chronic user, let alone between the long-term intermittent "chipper" and the individual whose drug dependence is such as to require several dosages each and every day. ~ AMERICAN MEDICAL ASS'N POLICY H-95.985 ("Drug testing does not provide any information about pattern of use of drugs, abuse of or dependence on drugs, or about mental or physical impairments that may result from drug use."). The correct and legitimate question is whether the policy pursuant to which the samnles were taken was sufficiently effective to justify the search, and on that point the evidence is unambiguous: Defendants' policy did not work.

Similarly, although the panel majority's assertion that urine screens are "effective at identifying" instances of fetal cocaine exposure appears at first blush to be a statement of unexceptionable fact, it, too, obscures the relevant medical and Fourth Amendment questions. As noted previously, the bases for selecting patients for screening were wholly unscientific and subjective in their application, raising serious questions as to whether testing was applied even-handedly among MUSC patients who were similarly situated. What is more, the policy assured that the many other women in Charleston who met
precisely the same "criteria" as did Petitioners but who were not MUSC patients were not searched at all.
Incredibly, the decision below held that these considerations did not "bear on" the Fourth Amendment inquiry. That holding is plain error. The constitutional right that Petitioners asserted is the right to be free of "unreasonable searches." The general rule, of course, is that searches not based on individualized determinations of probable cause are unreasonable per Se, but there is no basis for suggesting that in the "narrow~' class of cases where the per se rule properly does not govern, the dangers of arbitrary or uneven enforcement against which the probable cause requirement protects no longer "bear on" the Fourth Amendment validity of governmental action. Indeed, the Court's opinion in Sitz definitively contradicts any such assertion.

D. "Medical" Urine Screens Entail A Substantial
Privacy Intrusion
Just as it gave short shrift to the "effective advancement of the public interest" side of the balance, the decision below slighted the personal privacy rights implicated by the policy. Indeed, much as it relied on the medical setting to find a "special need" in the first place, the majority opinion cited 'The context in which the searches at issue here occurred" to support its conclusion that the urine testing in this case did not deserve the full privacy protections afforded by the Fourth Amendment. Ferguson, 186 F.3d at 479. Because 'The collection and testing of urine was conducted in the course of medical treatment to which [Petitioners] had consented," the Fourth Circuit explained, and "giving of a urine sample is a normal, routine, and expected part of a medical examination," the court held the privacy invasion only "minimally intrusive." Id.
This explanation ignores precisely what it is that enables physicians and counselors "routine[ly]" to perform intimate tests and elicit medically necessary but embarrassing or


24 25


incriminating personal information: the informed consent of the patient, obtained with both explicit and implicit reference to the duties of care and confidentiality. See Jaffe v. Redmond, 518 U.S. 1, 12 (1997) (noting that in absence of therapist-patient privilege, "evidence" sought from therapist's notes would never have come into being).
There is a fundamental difference between a patient's allowing a single doctor or nurse to perform an examination or conduct a test in connection with medical treatment, and having the same procedure conducted or observed, or test results known, by police, prosecutors, and a multitude of others. That difference is not merely intuitive. It has medical and constitutional significance. The identities of those who will have access to test results and the purposes to which those results will be put is "material" information that must be disclosed in order to obtain informed consent. Cf. Wilson v. Layne, 526 U.S. 603 (1999) (finding a constitutionally impermissible intrusion on privacy when a government official, though present in a home pursuant to a valid warrant, is accompanied by members of the press or public).
III. Cocaine Use Among Pregnant Women Does Not Present a "Special Need"
A consistent theme of cases exempting governmental actors from the warrant requirements is that the Fourth Amendment must not be construed as preventing the government from responding "reasonably" to exigent circumstances and crises a strain that is evident in certain "special needs" cases. See Skinner v. Railway Labor Execs. A~n, 489 U.S. 602 (1989); Vernonia Sch Dist. 47J v. Acton 515 U.S. 646 (1995). In these cases, however, the limitation "beyond those of ordinary law enforcement" has a different connotation: the problems were so formidable that the Fourth Amendment restraint should not apply. The behavior of the Defendants and, to a lesser extent, the opinion of the Fourth
Circuit majority proceed on the assumption that cocaine use by pregnant women presented such a crisis, both because more conventional medical and law enforcement measures had failed to stem the problem and because most of the health hazards risks were different in kind from those with which law enforcement (or the medical profession) usually deal.
Neither of these suppositions is correct. First, it is patently clear that no medically appropriate drug treatment policy had been tried and failed for women, such as Petitioners, who were drug-dependent and pregnant. $~ ~g., Horger Tr. 19-20, JA 643-44.
As for Defendant's assumption of cocaine's unique danger when ingested during pregnancy, although that understanding is consistent with the sensationalistic media accounts of the time, it is without support from empirical data.5



See Albert J. Tuboku-Metzger ~ 4, Cardiovascular Effects of Cocaine in Neonates Exposed Prenatallv, 13 American J. of Perinatology I (1996) (study of chronic cocaine use among pregnant subjects finding no direct effects on the health or development of newborns); Bertis B. Little et al Is There a Cocaine Syndrome? Dysmorphic and Anthropometric Assessment of Infants Exposed to Cocaine, 54 Teratology 145 (1996) (finding no recognizable constellation of dysmorphic features to distinguish between cocaine-exposed and non-exposed infants); Nancy Stewart Woods et al Cocaine Use During Pre2nancy: Maternal Depressive Symptoms and Infant Neurobehavior over the First Month, 16 Infant Behavior and Dev. 83, 92 (1993) (finding no differences in neurobehavioral performance of cocaine-exposed infants when compared to non-exposed infants); Claire D. Coles et al Effects of Cocaine and Alcohol Use in Pre~nancv on Neonatal Growth and Neurobehavioral Status, 14 Neurotoxicology and Teratology 23,31-32(1992) (finding prenatal cocaine exposure effects fetal growth but that cocaine-exposed infants do not appear otherwise impaired physically or behaviorally in the neonatal period); Barry M. Lester et al Data Base of Studies of Prenatal Cocaine Exposure and Child Outcome, 27 J. of Drug Issues 487(1997) (concluding that knowledge about the existence or extent of effects of prenatal cocaine exposure on child outcome is limited, scattered, and compromised by methodological shortcomings); Ellen



26 27


In so noting, Amici do not condone the use of illegal drugs. Furthermore, Amici in no way wish to downplay the harm that ingesting any substance could cause to a fetus or child. Indeed, Amici share a professional dedication to avoiding and reducing any such dangers. Nonetheless, it is important that this Court not labor under the same misperception as did the Defendants.
The policy at issue was predicated on the unproven assumption that prenatal exposure to cocaine causes long-term, deleterious effects on child development different in scope, degree and kind from risks posed by maternal behavior or exposure to other substances, licit or illicit. In fact, studies have not validated such an assumption. Not long after the Charleston policy was implemented, an article in the Journal of the American Medical Association reported that:
review of the current literature on the subject [of the adverse effects in infants born to cocaine-using mothers] indicates that available evidence from the newborn period is far too slim and fragmented to allow any clear predictions about the effects of intrauterine exposure to cocaine on the course and outcome of child grown and development. . . . Findings about neurobehavioral effects in the newborn period have been inconsistent or contradictory. Significantly, no prospective study of unique long-term consequences of intrauterine cocaine, non-opiate exposure has been published in the peer-review literature.



Hutchins, DruE Use DurinE Pre~nancv, 27 J. of Drug Issues 463, 466 (1997). See also LAURA E. GOMEZ, MISCONCEIvING MOTHERS:
LEGISLATORS, PRosECurORs, AND THE POLITICS OF PRENATAL DRUG ExPosuRE 23-25 (1997) (discussing the failure of longitudinal studies to find statistically significant differences between cocaine-exposed children and non-exposed children).
Linda C. Mayes .~j al The Problem of Prenatal Cocaine
Exposure: A Rush to Judgment 267 JAMA 406 (1992)
(internal citations omitted).6
A standard pediatrics textbook published the following year reaches the same conclusion, observing that "[t]o date no hypothesized or demonstrated effect of in utero cocaine exposure has been found to be specific to that drug. No studies have shown that prenatal cocaine exposure causes unique developmental dysfunction." Deborah A. Frank et al Maternal Cocaine Use: Impact on Child Health and Development, 40 Advances in Pediatrics 65, 92 (1993). See also Gail A. Wasserman et al Prenatal Cocaine Exposure and School Age Intelligence, 50 Drug & Alcohol Dependence 203,209 (1998) ("prenatal cocaine exposure does not seem to confer an additional risk for adverse developmental outcome"); Hallam Hurt et al Children with In Utero Cocaine Exposure Do Not Differ from Control Subjects On Intelligence Testing, 151 Arch. Ped. Adolesc. Med. 1237 (1997).
In the end, Defendants' purported good intentions carried the day in the court below. However, as a result of these intentions, medical professionals were compelled to ignore the ethical mandates of their discipline, the core teachings of their clinical experience, and the scientific data of peer reviewed research. This Court should not countenance the Charleston policy's unreasonable, counterproductive and wholly unnecessary assault on the professional autonomy of treatment providers, the medical privacy of patients, and the furtherance of public health.


6 According to a publication of the Harvard Medical School, two years after the Charleston policy was implemented a "combined analysis of 20 studies on cocaine and pregnancy found few effects that could be specifically attributed to cocaine." Update on Cocaine: Part I, 10 l4arv. Mental Health Letter (Harv. Med. Sch.), Aug. 1993, at 3.



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Conclusion
It has been and remains a principal object of judicial enforcement of the Fourth Amendment to distinguish between those cases where otherwise unconstitutional law enforcement tactics are truly necessary and those where the claims of "crisis"
even if sincerely subscribed to by "men ofzeal"~ out to be illusory. The Charleston policy falls squarely into the latter category. As explained above, the ongoing effects of the Fourth Circuit's approval of that policy continue to compromise the effective delivery of health care. Accordingly, this Court should reverse the decision of the panel majority below.


Respectfully submitted,


DAVID T. GOLDBERG
227 Garfield Place
Brooklyn, NY 11215
Telephone: (718) 789-5584
*DANIEL N. ABRAHAMSON AYELET WALDMAN
The Lindesmith Center
1095 Market Street, Suite 505
San Francisco, CA 94103
Telephone: (415) 554-1900



Attorneys for Amici Curiae

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