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US Supreme Court Strikes Down Hospital Practice
of Giving Drug Test Results To Police Without Patient Consent
by Earth Erowid
[Decided March 21, 2001]

In a 6-3 ruling on March 21 2001, the US Supreme Court said that a Charleston South Carolina Hospital's war on low income pregnant women was unconstitutional. The hospital started a program in the fall of 1988 to test all pregnant women for their use of cocaine, based on the (mostly-false) Crack Baby scare of the late 80's. When pregnant women did not respond to the offered counselling as much as the hospital wanted, the hospital began turning positive drug test results over to the police. Women who tested positive were arrested, prosecution, and in some cases had their newborn babies taken away from them based on charges of child abuse.

The Supreme Court ruled that since the hospital was state run and the staff were therefore "government actors", the "urine tests conducted by those staff members were indiputably searches within the meaning of the Fourth Amendment." The court differentiated this case from other drug-testing cases by virtue of the fact that they "conduct[ed] the drug tests and turn[ed] the results over to law enforcement agents without the knowledge or consent of the patients".

Stevens, the most pro-rights justice on the current Supreme Court, wrote a heartening opinion, arguing that this case is very different from the those cited by the lower court who allowed the hospital's actions. In other decisions by the Supreme Court, they allowed schools to drug test students who wished to participate in non-mandatory sports and the government to require urine testing to remain employed. In none of these cases were the drug tests secretly conducted: rather, collection of urine sampleswas always conducted explicitly for a drug tests, not disguised as a necessary medical procedure. Stevens, writing for the majority in this case, said:

In each of those cases, we employed a balancing test that weighed the intrusion on the individual's interest in privacy against the "special needs" that supported the program. As an initial matter, we note that the invasion of privacy in this case is far more substantial than in those cases. In the previous four cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. The use of an adverse test result to disqualify one from eligibility for a particular benefit, such as a promotion or an opportunity to participate in an extracurricular activity, involves a less serious intrusion on privacy than the unauthorized dissemination of such results to third parties. The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent. In none of our prior cases was there any intrusion upon that kind of expectation.

The Court also found that the case before them was different from other instances where hospitals turn over evidence to the police, such as with gunshot wounds, believable threats of violence, or some types of child abuse. The majority argued that this case was different because the testing and policies had been setup explicitly and only to detect evidence of a crime, unlike other cases where the treatment being given incidentally resulted in evidence of crimes: "While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence 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."

It is no surprise that the three arch-conservatives of the current court, Scalia, Rehnquist, and Thomas, all voted against the majority finding. These three justices are all notoriously anti-individual rights, anti-women's rights, anti-'criminal', pro-fetus rights, and pro-police. Their arguments in favor of allowing the hospital and police to perform non-consensual drug testing on low income women who come to state hospitals consists primarily of arguing that doing drug testing on patients does not constitute a search.

It has become a common argument for anti-rights groups and pro-police judges in the United States that the state and the police should be given the discretion to decide what is and what isn't acceptable and the courts should stay out of it. They argue, in cases where its convenient for their political views, that the courts have no business weighing the Constitutional issues involved and the police should be allowed to act as they choose.

For this case, the most compelling argument Scalia offers is that since the women voluntarily gave their urine for medical testing, there was no Fourth Amendment violation, despite the fact that the hospital concealed the testing of the urine and their relationship with the police. In traditional Fourth Amendment search contexts, the search itself cannot be as easily disguised or mistaken for what it is. Scalia argues that the situation here is no different from someone voluntarily handing over evidence of a crime to another private citizen and that citizen turning over that evidence to the police:

"Until today, we have never held or even suggested that material which a person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain."

This argument ignores the fact that the doctor-patient relationship is one which has been granted special status in our society, with higher expectations of privacy than those of a friend-friend relationship. Scalia argues that the only way this could be a Fourth Amendment Violation is if the patients had been forced to surrender their urine against their will as part of a government action:
There remains to be considered the first possible basis for invalidating this search, which is that the patients were coerced to produce their urine samples by their necessitous circumstances, to-wit, their need for medical treatment of their pregnancy. If that was coercion, it was not coercion applied by the government–and if such non-governmental coercion sufficed, the police would never be permitted to use the ballistic evidence obtained from treatment of a patient with a bullet wound.

While Scalia's arguments for empowering the legislatures of the states to enact privacy protections for its citizens certainly hold some water, when the legislatures and police abdicate their responsibility to protect the citizens in favor of police-state models of 'protecting health', the Constitution requires the Courts to act to maintain a minimum level of privacy against the tyranny.