Privacy / Public Health Reporting and Testing

Supreme Court Reviews Drug Testing of Pregnant Women - Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), no effective consent found on remand.

The basic facts of this case are simple: the public hospital in Charleston, South Carolina, tested pregnant women for cocaine use and, in some cases, turned the test results over to the police.  The purpose of the testing was to determine which babies were at higher risk because of their mother's drug use, and to identify mothers using drugs so they could be referred to a drug treatment program.  When the hospital found that the mothers were not going to the treatment program, it used a threat of turning them into the police to encourage them participate in treatment.  About 30 out of 250 women were arrested, and 2 were prosecuted.  The women who were arrested contested the law as an illegal search under the Fourth Amendment.  In a 6 - 3 decision (Kennedy concurred in the result but rejected the majority's reasoning), the United States Supreme Court found the testing and giving of the information to the police unconstitutional.

The majority's rationale in this case is murky, and the dissent by Scalia raises very difficult points.  The majority first distinguishes this case from the previous cases allowing warrantless drug testing.  Those cases involved voluntary testing related to employment or sports.  While there were penalties for refusing testing, the subjects knew they were being tested for drugs, knew the potential consequences of a positive test, and voluntarily consented to the testing.  Justice Kennedy would stop the analysis at this point and focus on the reason for the testing: the previous cases involved private remedies while this case involved criminal prosecution.  In his view, the secret collecting of evidence of drug use by a state actor hospital and its employees, for use by the police, is an illegal warrantless search.  The majority, however, delves into an analysis of the "special needs" underlying the test.  Their concern, which forms the basis of the dissent, is that it is legal for the state to require health care providers to report medical evidence of crimes with which they come in contact.  All states have these requirements for child abuse reporting, and most do for gunshot injuries, and some for other violent injuries.  All of these reports ultimately can involve the police and be evidence in a criminal prosecution.  Clearly not wanting to upset this precedent, the majority focused on the medical rationale for the testing.  The majority found that in this case the testing made no difference in the treatment of the women or the babies and was only done to identify women who needed to be referred to the drug treatment program.  Finding no immediate medical justification for the test, the court found that it could not be justified under its special needs analysis:

"While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. The threat of law enforcement may ultimately have been intended as a means to an end, but the direct and primary purpose of MUSC's policy was to ensure the use of those means. In our opinion, this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under respondents' view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs."" (footnotes omitted)

Justice Scalia, joined by Rehnquist and Thomas, rejects this special needs analysis and focuses instead on precedent supporting laws that require health care professionals to report medical information to the police.  None of these laws require that the physician tell the patient about the necessity of the report nor require special consent for any testing that is ultimately incorporated into the report.  Moreover, it has been argued that warning patients about reporting laws to help them avoid being reported is both against public policy and potentially aiding the person in their flight from prosecution.  If the state had a law requiring the results of drug tests to be reported, such a law would be constitutional.  Scalia argues that volunteering this information in the absence of the law should be legal because the patient did consent to the urine testing as part of the general consent to prenatal care and testing.  He rejects the majority's view that the consent is invalid because the test is not medically necessary, finding referral to a drug treatment center to be legitimate medical objective.  This is a strong criticism because under the majority's rationale, had the hospital used the drug use information in treating the mother or the baby, the test would have met their "special needs" test and been constitutional.  A simple change in the protocol requiring a pediatrician at the delivery of mothers using drugs would shelter such protocols, if the majority is taken at face value.

The opinions in this case are difficult to reconcile, and, according to the court, the facts are complicated by lack of a legal physician-patient relationship in South Carolina.  Justice Kennedy is clear that you cannot test the women just to have them prosecuted, but he ignores existing laws that do just that with gunshot wounds, although these might be plain view exceptions.  The majority is sensitive to his criticism, but their special needs analysis potentially creates a loophole if the hospital makes sure that test information is also used in treatment.  The dissent recognizes that most people consider it unseemly for health care providers to rat on their patients to the police, but that is not enough to make a law unconstitutional.  The author of this case brief would stress one point: this is not a public health case because no state power was used to force the women to be tested.  The state can require involuntary testing for conditions that threaten the public health. (Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973)) The results of those tests cannot be use for criminal prosecution.  If the state had forced unwilling women to be tested for drug use without a probable cause warrant, that would an unconstitutional use of the police power.  Both the majority and the dissent raise the difficult question - What if there is a reporting law that requires information from involuntary public health testing to be reported to the police?  Could this information then be used for criminal prosecution since it arguably meets the special needs test?

This case is limited to government hospitals - private health care providers who do such testing could be sued for invasion of privacy since there was no medical justification for the test.  However, such testing could be sheltered under the general consent for medical care if it was part of a medical treatment related protocol and was not done only for criminal law purposes.