# Appendix — Ferguson v. Charleston

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0495%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 67

## Text

No. 99- —p 9g 936 DEC 1 - 1999

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

i IRE

CRYSTAL M. FERGUSON, et al.,

Petitioners,

|

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

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

LYNN PALTROW

SUSAN FRIETSCHE

DAVID S. COHEN

Women’s Law Project

125 South Ninth Street, Suite 300
Philadelphia, Pennsylvania 19107
(215) 928-9801

DAVID RUDOVSKY

Kairys, Rudovsky, Epstein,
Messing & Rau

924 Cherry Street, Suite 500

Philadelphia, Pennsylvania 19107

(215) 925-4400

SETH KREIMER

3400 Chestnut Street
Philadelphia, Pennsylvania 19107
(215) 898-7447

PRISCILLA J. SMITH
Counsel of Record

SIMON HELLER

The Center for Reproductive
Law & Policy

120 Wall Street, 18th Floor

New York, New York 10005

(212) 514-5534

SUSAN DUNN

171 Church Street, Suite 160
Charleston, South Carolina 29401
(803) 722-6337

Counsel for Petitioners

A-l
APPENDIX

TABLE OF CONTENTS
Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir. 1999) A-3

Ferguson v. City of Charleston, No. 97-2512, Denying Petition for
Rehearing and Rehearing En Banc

EE SE ee A-34

Ferguson v. City of Charleston, No. 2:93-2624-2, “Findings of
Fact, Conclusions of Law, and Order”

rien MO My: PUT D sennesccndecscsinccobsctantsncsconasiitingss A-36
I TI FO ID istics ctncntcdecerenistticedseinsccscitnliicia A-46
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IE INN I sis biclcnckcscccindibitcabdiRiedischicnnstnninnneisincesdeuiiiben A-69
Pe SIN UU Sishindin sebidicinsinslidihidiiancanadidbtiipceotinsinaiinss A-72
Excerpt from Plaintiffs’ Exhibit #105 ..0............ccceseeeeseeseee A-75
Excerpts from Testimony of Shirley Brown, R.N................. A-76
Excerpts from Testimony of Ira J. Chasnoff .................:..00+ A-82
Excerpts from Testimony of Francis J. Cornely.................... A-90
Excerpts from Testimony of Roger Newman, M.D. ............. A-93

Excerpts from Testimony of John M. Sanders...................+. A-105

A-2

Excerpts from Testimony of Martin Shapiro.................:00+ A-108

Excerpts from Testimony of Martha J. Cooper Williams ... A-120

A-3

PUBLISHED
UNITED STATES COURT OF APPEALS,
FOURTH CIRCUIT.
186 F.3d 469

Crystal M. FERGUSON; Paula S. Hale; Ellen L. Knight; Patricia
R. Williams; Lori Griffin; Pamela Pear; Sandra Powell; Laverne
Singleton; Theresa Joseph; Darlene M. Nicholson, Plaintiffs-
Appellants,

and

State-Record Company, Incorporated; The Evening Post
Publishing Company, Intervenors-Plaintiffs,

v.

CITY OF CHARLESTON, SOUTH CAROLINA; Dr. Harrison L.
Peoples; Dr. Thomas C. Rowland, Jr.; Dr. Stanley C. Baker, Jr.;
Dr. Charles B. Hanna; Dr. Cotesworth P. Fishburne; Dr. E.
Conyers O’Bryan; Melvyn Berlinsky; Patricia T. Smith; M.J.
Cooper; Herbert C. Granger; Robert C. Lake, Jr.; Phillip D. Sasser;
Claudia W. Peoples; Dr. Carroll V. Bing, Jr., in their official
Capacities as Trustees of the Medical University of South Carolina;
Reuben Greenberg; Charles Molony Condon; David Schwacke;
Shirley Brown, R.N.; Edgar O. Horger, III, M.D.; Victor Del Bene;
John Sanders; William B. Pittard, M.D.; Roger Newman, M.D.;
Harold Bivins, M.D.; Melesia Henry, R.N., personally and in their

official capacities, Deft ts-Appellees.
Center For Constitutional Rights, Amicus Curiae.

No. 97-2512

Appeal from the United States District Court for the
District of South Carolina, at Charleston.
C. Weston Houck, Chief District Judge.
(CA-93-2624-2-12)

Argued: Oct. 26, 1998.

Decided: July 13, 1999.

A-4

Before WILKINS and NIEMEYER, Circuit Judges, and BLAKE,
United States District Judge for the District of Maryland, sitting by
designation.

Affirmed by published opinion. Judge WILKINS wrote the
majority opinion, in which Judge NIEMEYER joined. Judge
BLAKE wrote an opinion dissenting in part. j
Affirmed.

Blake, J., filed opinion dissenting in part.
COUNSEL

ARGUED: Priscilla Joyce Smith, Center for Reproductive Law &
Policy, New York, New York, for Appellants. Barbara Wynne
Showers, Joseph Camden Wilson, IV, Hood Law Firm, L.L.C.,
Charleston, South Carolina, for Appellees. ON BRIEF: Susan K.
Dunn, Charleston, South Carolina, for Appellants. Robert H.
Hood, Hood Law Firm, L.L.C., Charleston, South Carolina, for
Appellees. Kimani Paul-Emile, Barbara Olshansky, Center for
Constitutional Rights, New York, New York, for Amicus Curiae.

OPINION
WILKINS, Circuit Judge:

This litigation involves constitutional, statutory, and common-law
challenges to a policy instituted by the Medical University of
South Carolina (MUSC) in consultation with the Solicitor of the
Ninth Judicial Circuit of South Carolina; the City of Charleston,
South Carolina Police Department (CCPD); and various social
services agencies. The policy was intended to encourage pregnant
women whose urine tested positive for cocaine use to obtain
substance abuse counseling. Appellants, ten women who were
tested pursuant to the policy, brought this action claiming, inter
alia, that the testing of their urine for evidence of cocaine use
constituted a warrantless search in violation of the Fourth
Amendment; that the policy had a racially disparate impact in
violation of regulations implementing Title VI of the Civil Rights

A-5

Act of 1964, as amended, 42 U.S.C.A. §§ 2000d to 2000d-6 (West
1994 & Supp. 1998); that the disclosure of medical information to
law enforcement personnel violated their constitutional right to
privacy; and that MUSC personnel committed the state-law tort of
abuse of process in administering the policy. The district court
entered judgment for Appellees! on each of these claims at various
stages of the litigation. For the reasons set forth below, we affirm.

In the fall of 1989, MUSC instituted a policy providing for the
testing of the urine of pregnant women suspected of cocaine use
and for the reporting, under certain circumstances, of test results to
law enforcement officials. The impetus behind the policy came
from Nurse Shirley Brown, a case manager in the obstetrics
department at MUSC. Brown was concerned about a perceived
rise in cocaine use among pregnant women and the consequences
for the health of the users’ children. Brown spoke with the
General Counsel for MUSC who in turn contacted the Ninth
Circuit Solicitor (chief prosecuting attorney) concerning the
development of a policy to address the problem. Eventually, a task
force was formed that included Nurse Brown, the Solicitor, the
Chief of CCPD, and doctors from various departments involved in
perinatal care at MUSC. During the course of task force meetings,
the Solicitor informed the participants that because a viable fetus
was a “person” under South Carolina law, a woman who ingested
cocaine after the 24th week of pregnancy was guilty of the crime
of distributing a controlled substance to a person under the age of
eighteen, see S.C. Code Ann. § 44-53-440

'The complaint filed by Appellants named as defendants the City of
Charleston, South Carolina; the trustees of MUSC; CCPD Chief Reuben
Greenberg; former Ninth Circuit Solicitor Charles Condon; current Ninth
Circuit Solicitor David Schwacke; Nurse Shirley Brown; Nurse Melesia
Henry; and several physicians and MUSC officials involved in obstetrical
and neonatal care at MUSC. For ease of reference, we refer to these parties
collectively as “Appellees.” The parties evidently agree that only injunctive
relief is being sought against those individual Appellees who are state
officers sued in their official capacities. See Edelman v. Jordan, 415 U.S.
651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

A-6

(Law.Coop.Supp. 1997).

Pursuant to the policy formulated by the task force and
implemented in late October or early November 1989, urine drug
screens to detect evidence of cocaine use were given to all MUSC
maternity patients when certain indicia of cocaine use were
present: (1) separation of the placenta from the uterine wall; (2)
intrauterine fetal death; (3) no prenatal care; (4) late prenatal care
(beginning after 24 weeks); (5) incomplete prenatal care (fewer
than five visits); (6) preterm labor without an obvious cause; (7) a
history of cocaine use; (8) unexplained birth defects; or (9)
intrauterine growth retardation without an obvious cause. When a
patient tested positive, the test result was reported to CCPD or a
representative of the Solicitor’s Office and the patient was arrested
for distributing cocaine to a minor. In early 1990, the policy was
amended so that a patient who tested positive for cocaine use was
given a choice between being arrested and receiving drug
treatment. Positive test results of a patient who elected drug
treatment were not forwarded to CCPD, and the patient was not
arrested, unless she tested positive for cocaine use a second time or
failed to comply with treatment obligations. A patient who was
arrested could avoid prosecution by completing a drug treatment
program. Upon successful completion of such a program, the
charges would be dismissed.?

2 The South Carolina Supreme Court previously had held that a viable fetus
was a person within the meaning of South Carolina criminal law. See State v.
Horne, 282 S.C. 444, 319 S.E.2d 703, 704 (1984). Subsequently, the court
upheld a conviction for criminal child neglect in a case involving a woman
who ingested cocaine while pregnant with a viable fetus. See Whitner v.
State, 328 S.C. 1, 492 S.E.2d 777, 778-84 (1997), cert. denied, --- U.S. ---,
118 S.Ct. 1857, 140 L.Ed.2d 1104 (1998).

3 The dissent repeatedly characterizes Appellees’ actions in implementing the
policy as animated by a vindictive purpose to prosecute women who used
cocaine during pregnancy. The record simply does not support this.
Although the very real possibility of arrest was employed as an incentive for
women to comply with treatment obligations, the record is abundantly clear
that Appellees were motivated by a desire to protect the health of children
born at MUSC, and that the policy was formulated and implemented with this
goal in mind. Indeed, the district court so found. See J.A. 2739 (finding that
the “goal {of the policy] was not to arrest patients but to facilitate their

A-7

Implementation of the policy by MUSC involved substantial
record keeping and educational efforts. A maternity patient whose
urine tested positive for cocaine use was shown an educational
video concerning the harmful effects of cocaine use during
pregnancy and was given letters from the Solicitor’s Office and the
hospital staff relating to the policy. In addition, MUSC personnel
advised the patient of the need to obtain substance abuse
counseling and scheduled an initial appointment for such
counseling. The patient then was given a document noting the date
and time of the appointment. Additionally, MUSC maintained
records on patients whose urine tested positive for cocaine use as a
means of tracking them to ensure that they complied with the

treatment and protect both the mother and unborn child”). And, the evidence
in the record more than amply supports this finding. See, e.g., J.A. 583
(testimony of Nurse Shirley Brown) (confirming that the reason for the policy
was “concern ... for the health and safety and care of these fetuses and soon to
be children”); id. at 602 (testimony of Nurse Shirley Brown) (agreeing that
“it was always the intention of you and the people at the Medical University
of South Carolina, and in fact from what you learned at these meetings, [the]
Charleston Police Department, ... [and] the Solicitor, to help the women get
treatment, not to arrest them, not to prosecute them, not to cause them to go
to jail”); id. at 779-80 (testimony of Solicitor Charles Condon) (stating that
“the problem presented to us at that time [was], how to help these babies and
how to stop the totally preventable damage being done to these innocent little
children” and explaining that “[tJhe policy from its inception was
amnesty-based.... [I]f you lived up to some very basic requirements, number
one being drug free, ... and, number two, if you would go to free drug
treatment, not a thing would happen to you”); id, at 785-86 (testimony of
Solicitor Charles Condon) (“The idea that we were involved in a prosecution
program is almost laughable.... The idea was not to prosecute people and put
them in jail, the idea was to use legal intervention that was working to change
human behavior to protect children, to protect babies.”); id, at 863
(testimony of MUSC’s General Counsel) (“[TJhis was not supposed to be a
punitive policy where we went out and punished people for doing something.
even though we knew the activity was illegal. What we were trying to do is
give those babies a chance to be born normal.”). Indeed, while some of the
Appellants were arrested, not one of them was prosecuted; this fact belies the
dissent’s assertion that a purpose of the policy was to convict and punish
women who used cocaine during pregnancy.

A-8
requirements of the policy.

Appellants, all of whom were subjected to the policy,* brought
this action asserting, as pertinent here, infringement of their
constitutional right to privacy; violation of their Fourth
Amendment right to be free of unreasonable searches and seizures;
disparate impact discrimination on the basis of race; and
commission of the state-law tort of abuse of process. After
presentation of the evidence, the district court granted judgment as
a matter of law to Appellees on the claims of commission of abuse
of process and violation of the right to privacy to the extent
Appellants sought damages. The jury returned a verdict in favor of
Appellees on the Fourth Amendment claim. At a post-trial hearing,
the court denied injunctive relief on Appeilants’ claims of the
denial of their constitutional right to privacy. Finally, the district
court rendered findings of fact based on the evidence presented at
trial and ruled in favor of Appellees on the Title VI claim of
disparate impact discrimination.

On appeal, Appellants challenge the submission of the Fourth
Amendmeni claim to the jury and the sufficiency of the evidence
supporting the verdict; the decision of the district court granting
judgment to Appellees on the Title VI claim; and the orders of the
court granting Appellees judgment as a matter of law on the claims
for violation of the constitutional right to privacy and commission
of the tort of abuse of process. We review these issues seriatim.

Il.

At trial, Appellants contended that the urine drug screens
constituted searches within the meaning of the Fourth Amendment.
They further claimed that because they did not consent to the
screens, the tests violated the Fourth Amendment.> The district
court ruled that the urine screens fell within the ambit of the Fourth

4 At least two Appellants were subjected to urine drug screens shortly before
formal adoption of the policy. Testimony in the record indicates, however,
that MUSC personnel began to apply the policy informally in October 1989.

5 MUSC personnel did not obtain warrants before conducting the urine drug
screens.

ee ee ee a eee ees ©

A-9

Amendment and submitted the question of whether Appellants had
consented to the searches to the jury, which found in favor of
Appellees. Appellants now maintain that the district court erred in
submitting the issue of consent to the jury and, alternatively, that
the verdict is not supported by the evidence. We find it
unnecessary to address these contentions because we affirm on the
basis that the searches were reasonable as special needs searches.

The Fourth Amendment, made applicable to the states through the
Fourteenth Amendment, provides in pertinent part that “[t]he right
of the people to be secure in their persons ... against unreasonable
searches and seizures[ ] shall not be violated.” U.S. Const. amend.
IV; see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961). Simply put, this amendment guarantees that
governmental intrusions into privacy by means of searches or
seizures must be reasonable. Typically, this reasonableness
requirement acts as a constraint on governmental authority to
undertake a search or seizure in the absence of individualized
suspicion. See Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct.
1295, 137 L.Ed.2d 513 (1997). Generally, a search performed
without a warrant is unreasonable per se unless it fits within a
narrowly defined exception to the warrant requirement. See, e.g.,
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36
L.Ed.2d 854 (1973); Unit €s Vv. Lattimore, 87 F.3d 647, 650
(4th Cir. 1996) (en banc). Nevertheless, “neither a warrant nor
probable cause, nor, indeed, any measure of individualized
suspicion, is an indispensable component of reasonableness in
every circumstance.” Nati T ion v. Von
Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
Rather, there are situations in which “a Fourth Amendment
intrusion serves special governmental needs, beyond the normal
need for law enforcement.” Id. In such cases, “it is necessary to
balance the individual’s privacy expectations against the
Government’s interests to determine whether it is impractical to
require a warrant or some level of individualized suspicion in the
particular context.” Id. at 665-66, 109 S.Ct. 1384; see Chandler,
520 U.S. at 314, 117 S.Ct. 1295 (explaining that “[wJhen ...
“special needs’-- concerns other than crime detection--are alleged
in justification of a Fourth Amendment intrusion, courts must

A-10

undertake a context-specific inquiry, examining closely the
competing private and public interests advanced by the parties”).
This balancing requires consideration of the governmental interest
prompting the invasion; the effectiveness of the intrusion, i.e., the
degree to which the intrusion reasonably is thought to advance the
governmental interest; and the magnitude of the intrusion upon the
individuals affected, from both a subjective and objective stand
point. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444,
455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); id. at 451-55, 110
S.Ct. 2481 (applying test); DesRoches v. Caprio, 156 F.3d 571,
574 (4th Cir. 1998).

The parties evidently have agreed throughout this litigation that
MUSC is a state hospital and that MUSC employees therefore are
government actors.® And, the district court found as a fact that
MUSC personnel conducted the urine drug screens for medical
purposes wholly independent of an intent to aid law enforcement
efforts.’ Accordingly, the question presented is whether a

© Our analysis is premised on the assumption that when a state hospital
develops a general policy to test the urine of certain patients suspected of
drug use, the testing constitutes a search within the meaning of the Fourth
Amendment. But cf. United States v. Attson, 900 F.2d 1427, 1432- 33 (9th
Cir. 1990) (holding that government-employed doctor who, for medical
purposes, tests a patient’s urine for evidence of alcohol use does not conduct
a search within the meaning of the Fourth Amendment unless he “act [s] with
the intent to assist the government in its investigatory or administrative

purposes and not for an independent purpose”).

7 The district court declined to hold the searches at issue here reasonable
under a special needs analysis because law enforcement officers were
involved in the formulation of the policy. However, the involvement of law
enforcement officers does not make a special needs analysis inappropriate.
See Sitz, 496 U.S. at 451-55, 110 S.Ct. 2481 (upholding, under a special
needs balancing test, a sobriety checkpoint operated by uniformed police
officers); Norwood v. Bain, 166 F.3d 243, 245 (4th Cir. 1999) (en banc\per
curiam), cert. denied, --- U.S.----, 119 S.Ct. 2342, 144 L.Ed.2d 239 (U.S.
1999).

The dissent makes the related argument that the use of evidence obtained
during the searches to support the arrest of some patients precludes
application of the special needs balancing test. We disagree with this
proposition, as does the Supreme Court. See Griffin v. Wisconsin, 483 U.S.
868, 870, 875-77, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (determining that

ae eee EN e oP TT AAS et Neue mer MRT RE mE 4

A-11

balancing of MUSC’s interest in protecting the health of children
whose mothers use cocaine during pregnancy, the effectiveness of
the policy to identify and treat women who use cocaine during
pregnancy, and the degree of intrusion experienced by women
whose urine was tested for evidence of cocaine use results in a
conclusion that the searches violated the Fourth Amendment.

A.

The first factor to be considered is the governmental need. The
Fourth Amendment does not require a governmental need that is
compelling in an absolute sense. See Vernonia Sch. Dist. 47] v.
Acton, 515 U.S. 646, 661, 115 S.Ct. 2386, 132 L.Ed.2d 564
(1995). Instead, the interest must be “important enough to justify
the particular search at hand, in light of other factors that show the
search to be relatively intrusive upon a genuine expectation of
privacy.” Id.; see Chandler, 520 U.S. at 318, 117 S.Ct. 1295. The
hazard giving rise to the alleged special need must be a concrete
danger, not merely a hypothetical one. See Chandler, 520 U.S. at
318-19, 117 S.Ct. 1295; Vernonia, 515 U.S. at 662-63, 115 S.Ct.
2386 (explaining that a sharp rise in drug use by student athletes
supported school officials’ assertion that random drug testing
without individualized suspicion was warranted).

The policy at issue here was developed after medical personnel at

warrantless search based on reasonable grounds was justified by the special
needs of the Wisconsin probation system even though evidence gathered
during the search was employed to support a criminal conviction); see also
Sitz, 496 U.S. at 448, 110 S.Ct. 2481 (noting that suspicionless stop at
sobriety checkpoint resulted in arrest for driving under the influence). The
dissent’s attempt to distinguish Sitz is unpersuasive. It is true that the
decision of the Court “address[ed] only the initial stop of each motorist
passing through a checkpoint and the associated preliminary questioning and
observation by checkpoint officers.” Sitz, 496 U.S. at 450-51, 110 S.Ct.
2481. However, the fact that the initial suspicionless seizures led ultimately
to an arrest cannot have escaped the attention of the Court. If, as the dissent
contends, the intent to use information obtained during a suspicionless
seizure to further investigate and ultimately arrest an individual rendered the
special needs analysis inappropriate, Sitz would have been decided
differently.

A-12

MUSC noticed an alarming increase in the number of pregnancies
affected by cocaine use. Maternal cocaine use is associated with a
number of pregnancy complications, including low birth weight,
Even a single use of cocaine during pregnancy may result in
separation of the placenta from the uterine wall-a condition that
may threaten the life of the mother and the fetus-or a stroke in the
fetus. Moreover, costs related to caring for infants exposed to
cocaine in utero are substantial, as evidenced by the testimony of
an expert for Appellants who testified that he had estimated in the
late 1980s that such expenses nationwide might exceed three
billion dollars annually over the next ten years. In light of the
documented health hazards of maternal cocaine use and the
resulting drain on public resources, MUSC officials
unquestionably possessed a substantial interest in taking steps to
reduce cocaine use by pregnant women. Cf. Vernonia, 515 U.S. at
661-62, 115 S.Ct. 2386 (concluding that interest in deterring drug
use by school children was important in light of severe effects of
drug use on adolescents).

B.

The second factor, the effectiveness of the search, focuses on “the
degree to which [it] advances the public interest.” Sitz, 496 U.S. at
453, 110 S.Ct. 2481 (internal quotation marks omitted). In
analyzing this factor, however, our review must leave “the decision
as to which among reasonable alternative ... techniques should be
employed to deal with a serious public danger” to “the
governmental officials who have a unique understanding of, and a
responsibility for, limited public resources.” Id, at 453-54, 110
S.Ct. 2481.

Here, there can be little doubt that testing the urine of maternity
patients when certain indicia of possible cocaine use were present
was an effective way to identify and treat maternal cocaine use
while conserving the limited resources of a public hospital.
Indeed, prenatal testing was the only effective means available to
accomplish the primary policy goal of persuading women to stop
using cocaine during their pregnancies in order to reduce health

A-13
effects on children exposed to cocaine in utero.

Appellants argue, however, that the policy was ineffective because
it was both underinclusive and overinclusive. The policy was
underinclusive, Appellants claim, because it did not address use of
other drugs--such as alcohol and nicotine--that may pose risks to a
developing fetus. And, Appellants maintain that the policy was
overinclusive because women were tested on the basis of having
received inadequate prenatal care, a factor that Appellants contend
is more accurately associated with poverty than with cocaine use.

Neither of these assertions, even if true, has any bearing on the
effectiveness of the means adopted to achieve the goal of
identifying and treating maternal cocaine use among MUSC
patients. The first fails because it addresses only the wisdom of
the policy itself. And, the second fails because the fact that the
criteria for testing under the policy did not necessarily correlate
with cocaine use in all patients did not render those criteria
ineffective. Accordingly, we conclude that the method chosen by
MUSC officials was an effective one.’

OF

Finally, the degree of intrusion, both objective and subjective,
suffered by Appellants was minimal. The objective intrusion
suffered by an individual is “measured by the duration of the
seizure and the intensity of the investigation.” Id, at 452, 110 S.Ct.
2481. The subjective level of intrusion is measured by the extent
to which the method chosen minimizes or enhances fear and

* The dissent maintains that the urine screens were not an effective means of
identifying cocaine use by pregnant women because some patients were
arrested after giving birth, when “any adverse effect of maternal cocaine use
on the developing fetus had already occurred.” Infra at 27. In applying the
Special needs balancing test, however, the Proper focus is not on whether any
“rests under the policy were an effective means of advancing the identified
g©vernment interest, but rather on the effectiveness of the urine screens.
Urine screens conducted up to the time of birth unquestionably were effective
te determine whether a woman had used cocaine during her pregnancy and
thus whether her child required treatment for prenatal exposure to cocaine.

A-14
surprise on the part of those searched or detained. See id,

Generally, the privacy interests implicated by the collection and
testing of urine are not minimal. See Skinner vy, Railway Labor
Executives’ Ass'n, 489 U.S. 602, 626, 109 S.Ct. 1402, 103
L.Ed.2d 639 (1989). The context in which the searches at issue
here occurred, however, indicates that they were only minimally
intrusive. In the first place, the collection and testing of urine was
conducted in the course of medical treatment to which Appellants
had consented. The giving of a urine sample is a normal, routine,
and expected part of a medical examination. See Yin v, California,
95 F.3d 864, 870 (9th Cir. 1996) (observing that “[i]n today’s
world, a medical examination that does not include either a blood
test or urinalysis would be unusual”). Therefore, on an objective
level, the duration and intensity of the search indicate that the
Fourth Amendment intrusion was minimal at best. Cf. Dimeo v.
Griffin, 943 F.2d 679, 682 (7th Cir. 1991) (en banc) (indicating
that a urine drug screen conducted in the course of a medical
examination presents reduced privacy concerns). With respect to
the subjective level of intrusion, we note that urine drug screens
were conducted whenever one of the criteria for testing was met; a
treating physician had no discretion to decline to order a urine test
under the policy. See Turner v. Dammon, 848 F.2d 440, 446-47
(4th Cir. 1988) (explaining that “[t]he cases upholding warrantless
administrative searches clearly establish that these rules require
certainty, regularity, and neutrality in the conduct of the
searches”). This fact, combined with the routine nature of urine
testing in medical examinations, indicates that the searches were
minimally intrusive on a subjective level.

D.

In sum, the rising use of cocaine by pregnant women among
MUSC’s patient base and the public health problems associated
with maternal cocaine use created a special need beyond normal
law enforcement goals; the method chosen to address that
need--testing the urine of pregnant women when indicia of
possible cocaine use were present--effectively advanced the public
interest; and the intrusion suffered by Appellants was minimal.

i ee i

Se Se

A-15

Therefore, a balancing of these factors clearly demonstrates that
the searches conducted were reasonable and thus not violative of
the Fourth Amendment.

Title VI provides in pertinent part that “[nJo person in the United
States shall, on the ground of race, ... be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 42 U.S.C.A. § 2000d. Pursuant to Title VI,
Appellants? challenged MUSC’s policy of testing for and reporting
cocaine use by pregnant women, maintaining that it disparately
impacted African-American women, !°

In order to succeed on a Title VI disparate impact claim, a
plaintiff first must establish a prima facie case of discrimination by
showing “that a facially neutral practice has a disproportionate
adverse effect on a group protected by Title VI.”

» 997 F.2d 1394, 1407 (1 Ith Cir.

1993). The burden then “shifts to the defendant to demonstrate the
existence of a substantial legitimate justification for the allegedly
discriminatory practice.”

York, 71 F.3d 1031, 1036 (2d Cir. 1995) (per curiam) (internal
quotation marks omitted). If the defendant succeeds in doing so,

* Of the ten Appellants, eight are African-American, one is of mixed race,
and one is Caucasian.

'0 Although the statutory language of Title VI addresses only intentional
discrimination, federal agencies that provide funds may prohibit disparate
impact discrimination through regulations implementing Title VI. See
Alexander v, Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 83 L.Ed.2d 661
(1985) (discussing holdings of i : ivi *n, 463
U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)); New York Urban League,
Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (per curiam). The
parties agree that at least one federal agency that provides funds to MUSC
has promulgated regulations prohibiting disparate impact discrimination in
the operations of programs or activities. See, e.g., 45 C.F.R. § 80.3(b\2)
(1997) (providing that recipients of funds from the Department of Health and
Human Services may not, in furnishing services or benefits, “utilize criteria
or methods of administration which have the effect of subjecting individuals
to discrimination because of their race”).

A-16

the plaintiff nevertheless will prevail by showing “that other less
discriminatory means would serve the same objective.” Id.

Here, Appellants maintained that the policy disproportionately
affected African-Americans in several ways. Specifically,
Appellants argued that African-Americans were disproportionately
affected by application of the policy (1) only at MUSC; (2) only
to certain departments at MUSC; and (3) only to cocaine.
Appellants further asserted that the application of the factors
utilized to determine which patients would be tested for cocaine
use disproportionately affected African-Americans. The district
court concluded that Appellants had failed to establish a prima
facie case of discrimination with respect to any of the challenged
practices. Additionally, the district court determined that even if a
prima facie case of discrimination had been established, MUSC!!
had offered a legitimate justification for the policy -- that it
identified pregnant women who abused cocaine so that they could
be referred for treatment. Further, the court held that Appellants
had failed to carry their burden of establishing the existence of an
equally effective practice that would have a less disparate impact
because the alternative practices offered by Appellants would have

been prohibitively expensive.

Appellants now contend that the district court erred in concluding

'! Appellants’ counsel represented to the district court that Appellants were
pursuing the Title VI claim only against MUSC. Appellants now contend,
however, that this representation was “mistaken” and should be ignored by
this court. Reply Br. of Appellants at 11. Even if we could do so, the
evidence presented was inadequate to establish liability under Title VI against
the Solicitor or the City of Charleston -- the defendants to whom Appellants
now point.

Our review of the record reveals nothing to support a conclusion that the
Solicitor or the City of Charleston possessed authority to require other
hospitals to implement the policy. Accordingly, Appellants failed to prove
that either of these parties implemented a policy that resulted in a disparate
impact on African-Americans. Indeed, the testimony of Solicitors Condon
and Schwacke indicates that they unsuccessfully attempted to persuade other
area hospitals to adopt policies similar to MUSC’s; this testimony leaves the
unmistakable impression that if either Solicitor could have forced health care
providers to implement such a policy, he would have done so.

A-17

that they failed to establish a prima facie case of discrimination
and to provide a viable, less discriminatory alternative. With
respect to the establishment of a prima facie case, Appellants assert
that the policy resulted in a disproportionate impact on
African-Americans in two respects.

First, Appellants point to the fact that the policy was implemented
only at MUSC and maintain that failure to apply the policy at all
area hospitals resulted in a disproportionate effect on
African-Americans. However, we need not consider whether the
failure to apply the policy to all area hospitals would suffice to
establish a prima facie case of discrimination. Because there is no
evidence in the record to support a conclusion that MUSC could
have forced other hospitals to adopt the policy, requiring MUSC to
implement the policy at other area hospitals could not constitute a
viable, less discriminatory alternative. Appellants consequently
cannot prevail on this claim.

Second, Appellants maintain that MUSC’s decision to target
cocaine rather than all substances that are potentially harmful to
fetuses -- including nicotine and alcohol -- disproportionately
affected African-American women. In support of this contention,
Appellants note that only 68 percent of maternity patients who
tested positive for any drug were African-American, while 90
percent of maternity patients who tested positive for cocaine were
African- American.!2 We agree that this disparity -- 5.44 standard
deviations -- is sufficient to establish a prima facie case of

disparate impact discrimination. See Hazelwood Sch. Dist. v.

'2 The district court rejected this argument, concluding without explanation
that the relevant comparison was between the racial composition of the group
of women who tested positive for cocaine use and the racial composition of
the group of women who were arrested based on positive urine drug screens.
The difference in the racial composition of these two groups, the court noted,
was not statistically significant. We reject this reasoning. As the Supreme
Court has noted, it is not sufficient for a defendant to show a racial balance at
the end of a selection process; rather, the pertinent question for purposes of a
disparate impact analysis is whether a given step in the process
disproportionately affects members of one race. See Connecticut v. Teal, 457
U.S. 440, 450-51, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982).

A-18

United States, 433 U.S. 299, 311 n. 17, 97 S.Ct, 2736, 53 L.Ed.2d
768 (1977) (observing that a variance “of more than two or three
standard deviations” permits an inference of discrimination); ,
Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 568-69 & n. 13
(4th Cir. 1985) (noting that variance of five to eight standard
deviations permits an inference of discrimination).'3

MUSC justified its decision to target cocaine on the basis of a
perceived rise in the number of pregnant women abusing cocaine
and the resistance of these women to obtaining treatment for their
addictions. Appellants do not dispute that these are legitimate,
nondiscriminatory reasons for MUSC’s actions, but rather assert
that at least two alternative practices exist which, if adopted, would
have lessened the discriminatory impact of the policy: (1)
reporting use of all illegal drugs and alcohol, and (2) testing all |
maternity patients.'4 The district court found that both of these
practices would have been prohibitively expensive. See Wards
Cove Packing Co. y. Atonio, 490 U.S. 642, 661, 109 S.Ct. 2115,

104 L.Ed.2d 733 (1989) (explaining that determination whether
alternative measures exist that would serve the same purpose as a

'3 In its memorandum opinion, the district court stated that the comparison
was “between the MUSC maternity population and those who tested positive
for cocaine.” J.A. 2743. We need not resolve this ambiguity, however,
because either comparison results in a statistical difference of greater than
three standard deviations.

14 Appellants also argue that other substances, including nicotine and
alcohol, pose dangers to a fetus that are as great, or greater than, the dangers
posed by cocaine. Appellants therefore assert that MUSC's decision to target
cocaine -- a drug predominantly used by African-Americans -- is merely a
pretext for discrimination. First, we note that this argument is relevant only
to Appellants’ claim of intentional racial discrimination, a claim that was
rejected by the jury and that Appellants have not raised on appeal. Second,
we find no evidence of pretext in MUSC’s decision to target cocaine use -- a
problem that MUSC perceived as being particularly urgent -- rather than
testing for all potentially harmful substances. Cf. Bowen v, Owens, 476 U.S.
340, 347, 106 S.Ct. 1881, 90 L.Ed.2d 316 (1986) (noting that “(t}his Court
consistently has recognized that in addressing complex problems a legisiature

‘may take one step at a time, addressing itself to the phase of the problem
which seems most acute’ “ (quoting Williamson v. Lee Optical of Okla. Inc.,
348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955))).

A-19

challenged practice with a less disparate impact should take into
account whether the proposed alternatives impose undue costs or
other burdens). With respect to the first alternative, Appellants
point out that the urine drug screens conducted by MUSC
indicated the past use of any drug, not just cocaine. Appellants do
not challenge, however, the factual finding of the district court that
application of the policy -- including its tracking and reporting
requirements -- to all drugs would have been prohibitively
expensive. Further, they do not assert that the district court
committed clear error in finding that testing the urine of all
maternity patients at MUSC would have been prohibitively
expensive. Accordingly, we cannot conclude that Appellants have
demonstrated the existence of a means of accomplishing the goals
of the policy that would have been equally effective while
imposing a less disparate impact on African-Americans. We
therefore conclude that the district court correctly granted
judgment to Appellees on the Title VI claim.

IV.

Next, Appellants maintain that the district court erred in rejecting
their claim that the disclosure of information contained in their
medical records to a representative of the Solicitor’s Office and
officers of the CCPD violated their constitutional right to
privacy.' We conclude that any privacy interest Appellants
possessed in their medical records was outweighed by a
compelling governmental interest, particularly in light of the
nonpublic nature of the disclosure.

'S Appellants also contend that the actions of Nurse Laura Hildebrand, who
disclosed medical information concerning Appellants at meetings of the
Suspected Child Abuse and Neglect (SCAN) committee, violated their right
to privacy. The district court concluded that even if these allegations of
disclosure were correct, Appellants were not entitled to any damages based
on the actions of Nurse Hildebrand because she was not a party defendant.
Further, the court concluded that Appellants were not entitled to injunctive
relief because the SCAN committee had been disbanded and there was no
indication that it would be reconstituted at any point in the future. We affirm
these rulings.

A-20

The Constitution does not include a general right to privacy. See
Condon v. Reno, 155 F.3d 453, 464 (4th Cir. 1998). Nevertheless,
the Supreme Court has recognized that individuals possess a
constitutional “interest in avoiding disclosure of personal matters.”
Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64
(1977). This interest, however, is limited to disclosures of
information that touch on rights that “are fundamental or implicit
in the concept of ordered liberty.” Paul v. Davis, 424 U.S. 693,
713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (internal quotation
marks omitted); see Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir.
1998); United States v. McFillin, 713 F.2d 57, 60 (4th Cir. 1981)
(holding that a constitutional right to privacy is implicated when
the information disclosed “affects an essential component of a
person’s dignity”); cf. Condon, 155 F.3d at 464 (noting that the
Supreme Court has recognized a constitutional right to privacy
only with respect to certain limited areas, such as “matters of
reproduction, contraception, abortion, and marriage” (citations
omitted)). Moreover, even in those instances in which a
constitutional right of privacy attaches to personal information,
disclosure of that information will not violate the Constitution if
“the government’s interest in disseminating the information”
outweighs “the individual’s interest in keeping the information
private.” Bloch, 156 F.3d at 684.

Although the Supreme Court addressed a claim to a right of
privacy in medical records in Whalen, it declined to decide
whether such information merits constitutional privacy protection.
See Whalen, 429 U.S. at 605-06, 97 S.Ct. 869. And, the circuit |
courts of appeals are divided on this issue. Compare Doe v, |
Southeastern Pa. Transp. Auth., 72 F.3d 1133,1137 (3d Cir. 1995)
(recognizing that an individual possesses a constitutional privacy
right in medical records), with Jarvis v. Wellman, 52 F.3d 125, 126
(6th Cir. 1995) (holding that no constitutionally protected privacy
interest exists in medical records). We need not decide the
question, however, because we conclude that even if Appellants
possess a constitutional interest in the nondisclosure of their
medical records, that interest is outweighed by the interest of the
government in disclosure.

Ce

A-2!

It is well settied that a state has a compelling interest in the
identification of law breakers and in deterring future misconduct.
See Bloch, 156 F.3d at 686; Sanitation _V,
New York, 107 F.3d 985, 998 (2d Cir. 1997). Here, any medical
records disclosed were disseminated only to a limited number of
law enforcement personnel -- the prosecuting attorney and
arresting officers -- in the course of their official duties. There is
no indication that Appellants’ medica! records were disclosed to
others within the Solicitor’s Office, the CCPD, or the public in
general. See American Fed’n of Gov’t Employees, AFL-CIO v.
Depa sing & Urban + 118 F.3d 786, 793
(D.C.Cir. 1997) (holding “that the individual interest in protecting
..- Privacy ... is significantly less important where the information
is collected by the government but not disseminated publicly”);
Wa v. Low » 974 F.2d 482, 487-88 (4th Cir.
1992) (indicating that disclosure of information to a district court
did not abridge constitutional privacy interest because the
disclosure was not public). Accordingly, we hold that no privacy
right of Appellants was violated.

V.

Finally, Appellants maintain that the district court erred in
granting Appellees judgment as a matter of law on the claim that
the manner in which the policy was applied constituted the
state-law tort of abuse of process. More specifically, Appellants
assert that MUSC personnel improperly threatened Appellants
with arrest in order to coerce them into obtaining substance abuse
counseling.

Under South Carolina law, “[t]he essential elements of abuse of
processare: (1) an ulterior purpose; and (2) a willful act in the use
of the process not proper in the regular conduct of the proceeding,”

“The improper purpose usually takes the form of coercion to
obtain a collateral advantage[ ] not properiy involved in the
proceeding itself.” Hainer v. American Med. Int’l, Inc., 328 S.C.
128, 492 S.E.2d 103, 107 (1997). In order to satisfy the
requirement of an improper act, the plaintiff must show that the

A-22

defendant made “[s]ome definite act or threat not authorized by the
process or aimed at an object not legitimate in the use of the
process.... There is no liability where the defendant has done
nothing more than carry out the process to its authorized
conclusion, even though with bad intentions.” Id.

Here, the district court determined that MUSC personnel did not
have an improper ulterior purpose in advising women who tested
positive for cocaine use that they would be subject to arrest if they
did not obtain substance abuse counseling. Since Appellees did
not seek to obtain any collateral advantage for themselves, the
court reasoned, there could be no abuse of process. We need not
decide whether Appellees had an ulterior purpose, however,
because we conclude that they performed no act not authorized by
the process. At most, Appellees accurately informed Appellants
that ingestion of cocaine after the 24th week of pregnancy
constituted a criminal offense for which they could be prosecuted.
That maternity patients who tested positive for cocaine use could
avoid criminal prosecution by obtaining treatment does not render
the implementation of the policy abusive. Cf. Johnson, 307 S.E.2d
at 861 (holding that offer to abandon criminal prosecution in
exchange for restitution did not amount to abuse of process).

VI.

In sum, we reject Appellants’ challenges to the judgments in favor
of Appellees. Accordingly, we affirm.

AFFIRMED.

BLAKE, District Judge, dissenting in part:

The majority has concluded that the warrantless testing of urine
for evidence of cocaine use which resulted in the arrest of nine of
the 10 plaintiffs in this case constituted a reasonable search under
the “special needs” exception to the warrant requirement of the
Fourth Amendment. On this point, respectfully, I dissent.
Furthermore, I disagree with the majority’s conclusion that as to
the Title VI claim the appellants failed to demonstrate the

A-23

existence of a less discriminatory alternative policy. Accordingly,
I would reverse the district court’s decisions concerning the
appellants’ Fourth Amendment and Title VI claims and remand for
consideration of appropriate relief.

Some additional factual background is necessary to explain my
position on the Fourth Amendment issue. Preliminarily, assuming
that concein for the health of fetuses being carried by pregnant
women using crack cocaine was a motivating force in the
development of the MUSC policy, it nevertheless is clear from the
record that an initial and continuing focus of the policy was on the
arrest and prosecution of drug-abusing mothers, either before or
after they had given birth to the children presumably affected by
the cocaine use.' The prosecutorial purpose of the policy and the
substantial involvement of law enforcement officials from the very
beginning of its implementation are both illustrated by a letter sent
by MUSC General Counsel Joseph C. Good to Charles Condon,
Charleston City Solicitor, on August 23, 1989. In the letter, Mr.
Good wrote:

I read with great interest in Saturday’s newspaper accounts of
our good friend, the Solicitor for the Thirteenth Judicial Circuit,
Prosecuting mothers who gave birth to children who tested
Positive for drugs....
Please advise us if your office is anticipating future criminal
action and what if anything our Medical Center needs to do to
assist you in this matter.
(J.A. Vol. III at 2052.) In addition, operational guidelines issued
by Captain Roberts of the Charleston police force on October 12,
1989, with copies to Solicitor Condon and to MUSC nurse Shirley
Brown (one of the instigators of the MUSC program), refer to the
Positive drug tests as “probable cause” for arrest of the mother, on
charges of possession only if the pregnancy is 27 weeks or less,
and on charges of both possession and distribution to persons

' As set forth in greater detail below, seven of the plaintiffs were arrested
after the birth of their children.

A-24

under 18 if the pregnancy is 28 weeks or more. (J.A. Vol. III at
1412-1414.) Further, a letter from Mr. Good to a Senior Assistant
Attorney General on December 19, 1989, explaining the MUSC
program, states that it was developed by MUSC “{a]t the
suggestion of law enforcement and the solicitor’s office....” (J.A.
Vol. III at 1457.) These are merely a few examples of the
evidence in the record that supports a finding of both prosecutorial
intent on the part of MUSC and substantial involvement of law
enforcement officials in developing the program.

Following is a short summary of the circumstances under which
the plaintiffs in this case were tested and arrested:

Sandra Powell, African-American, received prenatal care at
MUSC from the end of her first trimester. (J.A. Vol. I at 322.) In
October 1989, she delivered her child at MUSC and tested positive
for cocaine. (J.A. Vol. III at 1842-44, 1853.) She was arrested at
the hospital the following day. (J.A. Vol. III at 1844, 1852.)

Lori Griffin, African-American, received prenatal care at MUSC
beginning in July 1989. (J.A. Vol. III at 1563.) She was admitted
to the hospital on October 7, 1989, with contractions. (J.A. Vol.
III at 1560.) She tested positive for cocaine. (J.A. Vol. III at
1559.) She was arrested and taken to the county jail. (J.A. Vol. III
at 1560, 1563.) She was returned to MUSC from jail on October
25, 1989, to deliver her child.

Ellen Knight, African-American, received prenatal care at MUSC
prior to the fall of 1989. (J.A. Vol. I at 293.) She arrived at the
hospital on November 6, 1989, in labor. (J.A. Vol. III at 1698.)
Although her cocaine test was negative, her child tested positive at
birth. (J.A. Vol. III at 1705, 1707.) She was arrested at the

2 In regard to the Title VI issue, it should be noted that the police department
guidelines are not limited to cocaine only but refer to “iliegal drugs”
generally, which the guidelines define as “heroin, crack/cocaine,
amphetamines, and any other drug illegally ingested by the patient that
medical authorities deem a threat to the life and safety of the unborn child.”
(J.A. Vol. III at 1412.)

Ree ee Pee
es ee ee eh ee ee ee

A-25
hospital on November 8, 1989,

Laverne Singleton, African-American, delivered her child on
November 9, 1989, in the ambulance on the way to MUSC. (J.A.
at 1225; Vol. Ill at 1859, 1865.) She tested positive for cocaine at
the time of admission. (J.A. Vol. III at 1859-60.) She was arrested
at the hospital the next morning. (Id.)

Paula Hale, African-American, first arrived at MUSC in
December 1990 in labor. (J.A. Vol. IE] at 1581-83.) She tested
positive for cocaine at delivery and was referred to substance
abuse counseling. (Id.) She was arrested in March 199] after
failing to complete the drug treatment program. (J.A. Vol. II at
1585-86.)

Pamela Pear, African-American, arrived at MUSC in July 1990
with pre-term labor symptoms. (J.A. Vol. II at 1817.) She tested
positive for cocaine during that visit. (Id.) She was referred to
substance abuse counseling. (J.A. Vol. III at 1736.) In August
1990, she was again admitted to MUSC for pre-term labor and
tested positive for cocaine. (J.A. Vol. III at 1757.) She was
arrested at the hospital and was released on bond the same day.
She delivered her child at MUSC in September 1990. (J.A. Vol.
III at 1765.)

Theresa Joseph, who was multi-racial,} was first seen at MUSC on
June.5, 1991, fora non-pregnancy related matter. (J.A. Vol. III at
1599.) She tested positive for cocaine at that time and was referred
to the obstetrical clinic. (J.A. Vol. III at 1601-02.) She was
admitted to the hospital again, for the same non-pregnancy
complaint, on June 13, 1991. She again tested positive for cocaine
and was referred to substance abuse counseling. (J.A. Vol. III at
1612, 1626.) She failed to complete the substance abuse program
in July 1991. (J.A. Vol. III at 1656, 1682.) She was seen again in
September 1991 and once more tested positive for cocaine. (J.A.
Vol. I at 515; Vol. III at 1628- 29.) Finally, she arrived at MUSC

3 Ms. Joseph is now deceased. She was described as “black” on her
Charleston Police Department Incident Report. (J.A. Vol. Ill at 1655.)

A-26

in October 1991 in labor and tested positive for cocaine. (J.A. Vol.
III at 1632, 1634.) Her child was born on October 18, 1991, and
Ms. Joseph was arrested at the hospital. (Id,)

Crystal Ferguson, African-American, tested positive for cocaine
during a prenatal visit to MUSC in June 1991. (J.A. Vol. II] at
1530.) She agreed to attend substance abuse counseling. (J.A.
Vol. II] at 1537.) On August 4, 1991, she delivered her child at
MUSC. She tested positive for cocaine at that time. (J.A. Vol. III
at 1533.) She was arrested on August 7, 1991, for failing to
comply with the drug treatment program. (J.A. Vol. III at 1541.)

Patricia Williams, African-American, received prenatal care at
MUSC beginning in January 1992. (J.A. Vol. II] at 1910.) She
tested positive for cocaine at the time of her first visit and was
referred to substance abuse counseling. (J.A. Vol. II] at 1903,
1939-40.) She did not complete the counseling program and
returned for additional prenatal care three times, testing positive ;
for cocaine each time. (J.A. Vol. II] at 1901-02, 1907.) In March
1992, she arrived at the hospital in labor. (J.A. Vol. III at
1910-11.) She again tested positive for cocaine. (Id,) Her baby
was born on March 10, 1992, and on March 12, 1992, she was
arrested at the hospital. (Id,)

Darlene Nicholson, Caucasian, received regular prenatal care at
MUSC. (J.A. Vol. I at 447-48, 450; Vol. III at 1717, 1724.) At
her December !7, 1993 prenatal visit she tested positive for
cocaine. (J.A. Vol. I at 452-53.) At that time, she was told that
she must voluntarily admit herself to the MUSC psychiatric unit
for substance abuse treatment or she would be arrested. (Id,) She
entered the psychiatric unit and remained there until she was
released after 30 days. (J.A. Vol. III at 1717.) She delivered her
child at MUSC on February 21, 1994. (J.A. Vol. I at 458.)

In none of these cases was a warrant obtained before the urine
testing was done or before the results were turned over to the
police and the plaintiffs were arrested. Furthermore, the consent
forms signed by the plaintiffs did not advise them that their drug
test results would be disclosed to the police. The majority excuses

A-27

the lack of a warrant, or indeed any determination of probable
cause, by relying on the “special needs” exception to the ordinary
Fourth Amendment requirement that a warrant be obtained.

The Supreme Court has held that
where a Fourth Amendment intrusion serves special
governmental needs, beyond the normal need for law
enforcement, it is necessary to balance the individual’s privacy
expectations against the Government's interests to determine
whether it is impractical to require a warrant or some level of
individualized suspicion in the particular context.
ion v. V , 489 U.S. 656,
665-66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (emphasis
added). Similarly, the Court has instructed that
When such “special needs” -- concerns other than crime
detection -- are alleged in justification of a Fourth Amendment
intrusion, courts must undertake a context-specific inquiry,
examining closely the competing private and public interests
advanced by the parties.
Chandler v. Miller, 520 U.S. 305, 314, 117 S.Ct. 1295, 137
L.Ed.2d 513 (1997) (emphasis added). Several aspects of the
“special needs” exception require careful analysis in the context of
this case.

First, as the emphasized portions of the above quotations make
clear, the “special needs” exception does not apply where the
governmental intrusion is intended to be used for law enforcement
purposes. In Von Raab, the issue was whether “it violates the
Fourth Amendment for the United States Customs Service to
require a urinalysis test from employees who seek transfer or
promotion to certain positions.” 489 U.S. at 659, 109 S.Ct. 1384.
The Supreme Court in that case held that the Fourth Amendment
permutted the suspicionless testing of employees who applied for
positions directly involving the use of firearms or the interdiction
of illegal drugs. Id. at 679, 109 S.Ct. 1384. In reaching this
conclusion, the Court applied a “special needs” analysis, balancing
the individuals’ privacy interests against the non-law enforcement

A-28

governmental interests served by the urinalysis policy.
Significantly, in deciding to apply the “special needs” balancing
test to the facts before it, the Court emphasized that “[i}t is clear
that the Customs Service’s drug-testing program is not designed to
serve the ordinary needs of law enforcement. Test results may not
be used in a criminal prosecution of the employee without the
employee’s consent.” Id. at 666, 109 S.Ct. 1384 (emphasis added).
In fact, in none of the cases relied on by the majority, other than
the sobriety checkpoint and probation supervision cases which will
be addressed below, were the results of the drug tests or other.
searches intended for use in a criminal prosecution. See Vernonia
Sch. Dist. v. Acton, 515 U.S. 646, 651, 115 S.Ct. 2386, 132 -
L.Ed.2d 564 (1995) (authorizing only certain school officials to
have access to test results); Skinner v. Railway Labor Executives’
Ass'n, 489 U.S. 602, 621 & n. 5, 109 S.Ct. 1402, 103 L.Ed.2d 639
(1989) (“While [the provision permitting drug testing of railroad
personnel] might be read broadly to authorize the release of
biological samples to law enforcement authorities, the record does
not disclose that it was intended to be, or actually has been, so
used.”’); Yin v. State of California, 95 F.3d 864, 869, 873 (9th Cir.
1996) (state employee required to submit to medical examination
solely to determine her ability to perform normal work duties);
Dimeo v.Griffin, 943 F.2d 679, 685 (7th Cir. 1990) (en banc)
(jockeys and other participants in horse racing required to undergo
random drug tests as condition of occupational licensure). In sharp
contrast, nine out of ten of the plaintiffs in this case were arrested
based on the test results, and one avoided arrest only by
committing herself to a psychiatric unit. Under these
circumstances, I believe the “special needs” exception does not

apply.

The majority cites Michigan Department of State Police v. Sitz,
496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), and Griffin

v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709
(1987), for the proposition that the defendants’ intention to use the
results of the drug tests as probable cause to arrest the plaintiffs in
this case does not preclude application of the special needs
balancing test. In Sitz, however, the Supreme Court was careful to
explain that the special needs exception applied only to the

A-29

suspicionless “seizure,” that is, the initial stop of each motorist and
the associated preliminary questioning and observation, 496 U.S.
at 450-51, 110 S.Ct. 2481, which the Court characterized as only a
“slight” intrusion. Id. at 451, 110 S.Ct. 2481. The Court
specifically noted that the “[d]etention of particular motorists for
more extensive field sobriety testing may require satisfaction of an
individualized suspicion standard.” Id. at 451, 110 S.Ct. 248]
(citing United States v. inez-Fuerte, 428 U.S. 543, 559, 96
S.Ct. 3074, 49 L.Ed.2d 1116 ( 1976)). The Sitz balancing test,
which justifies the relatively slight intrusion of a checkpoint
seizure, does not serve also to justify searches of the motorists’
persons or effects without consent or probable cause. See United
States v. Ortiz, 422 U.S. 891, 896- 97, 95 S.Ct. 2585, 45 L.Ed.2d
623 (1975). Griffin also is readily distinguishable. In that case,
the Supreme Court upheld the validity of a warrantless search

Accordingly, I believe the majonity reads Sitz and Griffin too
broadly in suggesting that the special needs exception can justify a
Suspicionless search of a member of the public intended to produce
evidence for use in a criminal arrest.

In this case, the MUSC policy was intended from its inception to
result in the arrest and possible prosecution of pregnant women
who were patients at the state hospital. In all the other special
needs cases cited by the majority, arrest was at most an incidental
possibility and not a direct result of the warrantiess Fourth
Amendment intrusion sought to be justified. It is simply
inconsistent with the record in this case to identify the drug testing
imposed by MUSC as not serving normal law enforcement needs.

A-30

1 would find that the avowed and actual purpose of arresting
patients who tested positive for cocaine, as well as the extensive
involvement of law enforcement officials in designing and
implementing the policy, preclude application of the special needs
analysis in this case.

Even if | assume, however, that a special needs balancing test
should be applied, and further assume that the governmental
interest identified by the majority -- i.e., the adverse effect of
maternal cocaine use on the health of children exposed to cocaine
in utero -- is substantial, | believe that the policy fails the test of
“effectiveness,” i.e., “[t}he degree to which the search advances the
public interest.” See Sitz, 496 U.S. at 453, 110 S.Ct. 2481. It is
undisputed that seven of the plaintiffs were arrested after giving
birth (indeed, several were taken into custody at the hospital
wearing only their hospital gowns), rather than during the prenatai
period.* By that time, any adverse effect of maternal cocaine use
on the developing fetus had already occurred, and the arrest could
only have had a punitive rather than a preventive purpose.

Nor is it correct to say that the degree of intrusion on the mother’s
privacy was “minimal” simply because the test occurred in the
context of a hospital examination. Unlike the policy in Von Raab,
under the MUSC policy the test results are reported not simply to a
licensed physician, but to law enforcement officials with no
medical reason for receiving the information. Cf. Von Raab, 489
U.S. at 672 n. 2, 109 S.Ct. 1384 (noting as one of the procedures
that minimized the intrusiveness of the drug-screening program
that “an employee need not disclose personal medical information
to the Government unless his test result is positive, and even then
any such information is reported to a licensed physician”).

For all the above reasons, I agree with the trial court that the drug
testing policy applied to the plaintiffs in this case violated the

* Moreover, several of the plaintiffs who were not arrested until after giving
birth had tested positive for cocaine multiple times during the prenatal period
when, according to the purported purpose of the policy, intervention was
crucial.

A-31
Fourth Amendment, in the absence of valid consent.

The district court also properly found that the various consent
forms signed by the plaintiffs, which did not advise them that the
drug test results would be disclosed to the police, did not alone
establish valid consent. Accordingly, the court submitted this case
to the jury on the issue of consent, and the jury returned a verdict
in favor of the defendants, The plaintiffs moved for judgment
under Fed.R.Civ.P.50(b), and the court denied the motion.

I disagree that the evidence presented at trial was sufficient to
Sustain the jury’s verdict. When considering a Rule 50(b) motion
for judgment as a matter of law, the district court must view the
evidence in the light most favorable to the non-moving party and
then determine whether a reasonable jury could draw only one
conclusion from the evidence. See Vv
Ry. Co,, 887 F.2d 498, 499 (4th Cir, 1989). We review the district
court’s ruling on a Rule 50(b) motion by applying the same
standards de novo. Id, In addition to the consent forms, the
defendants presented other evidence, such as letters that either
accompanied the forms or were distributed after a Positive test
result, and a public service announcement issued by the Solicitor’s
Office in 1990. The public service announcement indicated that
pregnant women who tested positive for drug use could be subject
to prosecution; however, it was seen by only two of the plaintiffs.
(J.A. Vol. 1 at 374, 518-19.) The plaintiffs’ presumed familiarity
with this information, even when combined with a general
knowledge that use of cocaine is illegal, is not sufficient to
establish the plaintiffs’ voluntary and knowing consent to the
possible use against them in a criminal case of drug test results
taken in the course of their pregnancy and labor. Cf. Von Raab,
489 U.S. at 666, 109 S.Ct. 1384 (positive test results “may not be
used in a criminal prosecution without the employee’s consent”). |
also question whether consent can be voluntary, in a constitutional
sense, when given by an indigent, uninsured woman in labor, who
is dependent on medical care provided by the state’s public
hospital. If the special needs exception had been held not to apply,
a more thorough analysis of this issue would have been necessary.

A-32
Il.

I agree with the majority’s analysis of the Title VI issue, except
with regard to the availability of an equally effective alternative
policy with a less discriminatory impact.5 The plaintiffs point out,
correctly, that the urine tests being performed under the MUSC
policy indicate a patient’s past use, not just of cocaine, but of other
illega! drugs as well. (J.A. Vol. II at 1336-42.) Consequently,
applying the policy to the past use of all illegal drugs, not just
cocaine, as the plaintiffs suggested, would not have increased the
cost of the testing. The district court’s finding that testing for all
illegal drugs “would be prohibitively expensive,” therefore, is not
supported by the record. In affirming the decision below, the
majority states that the plaintiffs have not challenged the district
court’s factual finding “that application of the policy — including
its tracking and reporting requirements — to all drugs would have
been prohibitively expensive.” The district court, however, made
no such finding. In considering the alternative of focusing on all
illegal drugs, not just cocaine, the court relied only on the cost of
testing, not tracking or reporting, to reject that alternative. (J.A.
Vol. IV at 2746). Since the plaintiffs have shown that their
proposed alternative of applying the testing policy to past use of
any illegal drug would not have resulted in any additional cost, the
district court’s fact- finding on the issue of the cost of testing is
clearly erroneous, and the plaintiffs have carried their burden of
demonstrating the availability of an equally effective alternative
with a less discriminatory impact.’ Accordingly, I would reverse
the judgment in favor of the defendants on the Title VI claim and
remand for consideration of injunctive relief.

> The appellants’ brief challenges the factual findings of the district court
concerning the cost of the testing program and the overall effectiveness of the
policy. (Brief of Appellants at 49).

© Nor is any evidence on this issue apparent in the record, except for evidence
suggesting that the Charleston Substance Abuse Clinic, not MUSC, would
notify police regarding missed substance abuse appointments, (J.A. Vol. III at
1430), and that the Solicitor’s Office would be responsible for tracking
compliance, generally. (J.A. Vol. I at 610-11.)

’ The plaintiffs have not shown that the district court erred in rejecting their
second alternative, i.e., testing all matemnity patients at MUSC.

A-33

, IV.

In summary, I would reverse the district court on the Fourth
Amendment and Title VI Claims, and r

emand for consideration of
appropriate relief. On these two issues, respectfully, I dissent.

kkk

A-34

DENYING PETITION FOR REHEARING AND
REHEARING EN BANC
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

FILED
September 2, 1999

SOMMERS. Roe lr hae ht ee
ba eal ahd Tall i yee ere ae ols)

No. 97-2512
CA-93-2624-2-12

CRYSTAL M. FERGUSON; PAULA S. HALE; ELLEN L.
KNIGHT; PATRICIA R. WILLIAMS; LORi GRIFFIN;
PAMELA PEAR; SANDRA POWELL; LAVERNE
SINGLETON; THERESA JOSEPH; DARLENE M.
NICHOLSON

Plaintiffs - Appellants

And

PARED RPE AR Mim te yee

STATE-RECORD COMPANY, INCORPORATED; THE
EVENING POST PUBLISHING COMPANY

rrr -
Ron as

Intervenor - Plaintiff

- Vv.

CITY OF CHARLESTON, South Carolina; HARRISON L.
PEOPLES, Dr.; THOMAS C. ROWLAND, JR., Dr.; STANLEY
C. BAKER, JR., Dr.; CHARLES B. HANNA, Dr.; MELVYN
BERLINSKY; PATRICIA T. SMITH; M. J. COOPER;
HERBERT C. GRANGER; ROBERT C. LAKE, JR.; PHILLIP D.
SASSER; CLAUDIA W. PEOPLES; CARROLL V. BING, JR.,
Dr., as Trustees of the Medical University of South Carolina in
their official capacities; RUEBEN GREENBERG; CHARLES
HORGER, III, M.D.; VICTOR DEL BENE; JOHN SANDERS;
WILLIAM B. PITTARD, M.D.; ROGER NEWMAN, M.D.;

A-35

HAROLD BIVENS, M.D.; MELESIA HENRY, R.N., personally
and in their official capacities

Defendants - Appellees

CENTER FOR CONSTITUTIONAL RIGHTS
Amicus Curiae

Appellants filed a petition for rehearing and rehearing en
banc,

The panel voted to deny the petition for rehearing.

A member of the Court requested a poll on the petition for
rehearing en banc. The poll failed to produce a majority of judges
in active service in favor of rehearing en banc. Chief Judge
Wilkinson and Judges Widener, Wilkins, Niemeyer, Hamilton,
Luttig, Williams and Traxler voted against rehearing en banc and
Judges Murnaghan, Ervin, Michael, Motz and King voted to rehear
the case en banc, The Court denies the petition for rehearing and
rehearing en banc.

Entered at’the direction of Judge Wilkins for the Court.

For the Court,

/s/ Patricia S. Connor

CLERK

A-36
Filed September 29, 1997

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

‘Civil Action No. 2:93-2624-2

Crystal M. Ferguson, Theresa Joseph, Darlene Nicholson, Paula S.
Hale, Ellen L. Knight, Patricia R. Williams, Lori Griffin, Pamela
Pear, Sandra Powell, and LaVerne Singleton,

Plaintiffs,

VS.

The City of Charleston, South Carolina, et al.,
Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

This action was brought by ten women pursuant to 42
U.S.C. §1983 alleging their rights were violated by the defendants
when the women were arrested for drug use while pregnant. The
plaintiffs asserted ten claims: (1) vielation of the right to privacy;
(2) violation of the right to procreate; (3) violation of the Fourth
Amendment; (4) violation of the Equal Protection clause based on
gender discrimination; (5) violation of the Equal Protection clause
based on racial discrimination; (6) violation of Title VI of the Civil
Rights Act; (7) violation of the Federal Confidentiality Statute, 42
U.S.C.-§290dd-2; (8) abuse of process; (9) violation of the Due
Process clause of the Fourteenth Amendment; and (10) violation of
the right to refuse medical treatment

The action came to trial before the court with a jury from
November 20, 1996, to December 19, 1996. The court granted
judgment as a matter of law for the defendants on the claims for
intentional discrimination on the basis of gender, due process, right
to refuse medical treatment, 42 U. S.C. §290dd-2, and abuse of

A-37

process. The court charged the jury on the plaintiffs’ claims for
violations of the Equal Protection clause and Fourth Amendment
and “he jury rendered a verdict in favor of the defendants on both
claims. The court them too’-,-.. under advisement the claims for
denial of the right te privacy, right to procreate, and Title VI. On
August 13, 1997, the court denied the plaintiffs’ request for
injunctive relief in the right to procreate and right to privacy claims
and allowed to parties to submit further briefs on the Title VI
claim. The court has now considered the Title VI claim, After
weighing the testimony of the witnesses, examining the exhibits
introduced, and studying the applicable law, the court, pursuant to
Rule 52 of the Federal Rules of Civil Procedure, hereby makes the
following findings of fact and conclusions of law:

Findings of Fact

1. The plaintiffs are eight black women, one white woman,
and one woman who is multiracial.

2. The defendants are either agencies of the State of South
Carolina or agencies of political subdivisions thereof.

3. All of the plaintiffs presented at the Medical University
of South Carolina (“MUSC”) in Charleston, South Carolina for
gynecological services. All of the plaintiffs either delivered
children at MUSC or were treated postpartum at MUSC.

4. All of the plaintiffs except. Darlene Nicholson were
arrested when the defendants discovered they were using drugs
while pregnant. Instead of being arrested, Darlene Nicholson was
involuntarily committed to MUSC’s Institute of Psychiatry tor
drug treatment.

5. The catalyst for targeting these individuals was a policy
designed to prevent cocaine abuse in pregnant women. During the
fall of 1989, the defendants formulated a policy (“policy”) for
treating pregnant women who tested positive for cocaine at
MUSC. The policy was not implemented at any other hospital in

A-38

Charleston by these defendants nor was it applied to women who
were less than twenty-four weeks pregnant.

The policy identified probable drug abuse through
screening all maternity patients who met certain criteria. A female
patient was tested for cocaine through the use of a urine drug
screen (“UDS”) if she presented with one or more of the following
symptoms: (1) abruptio placentae, or separation of the placenta
from the uterine wall; (2) intrauterine fetal death; (3) no prenatal
care; (4) late prenatal care; (5) incomplete prenatal care; (6) pre-
term labor of no obvious cause; (7) history of cocaine use; (8)
unexplained congenital anomalies; or (9) intrauterine growth
retardation of no obvious cause.

6. If a patient tested positive for cocaine, an employee of
MUSC would confront the patient and question her about her drug
use. At some point thereafter, the positive results of the UDS were
provided to the Ninth Circuit Solicitor’s office or to the Charleston
City Police Department. An officer of the latter then arrested the
patient who had tested positive.

7. The policy was applied in all maternity departments at
MUSC. Its goal was not to arrest patients but to facilitate their
treatment and protect both the mother and unborn child.

8. Prior to 1990, if a patient tested positive for cocaine she
was arrested without further ado. However, the defendants
changed the policy in 1990 to give patients a choice to receive
treatment for their drug use or be arrested and prosecuted under
South Carolina law.

9. The large majority of MUSC’s maternity patients are
black. The maternity population at MUSC during the time period
relevant to this action was approximately sixty-seven percent
(67%) black and thirty-three percent (33%) white.

10. The racial composition of the women who tested
positive for cocaine at MUSC during the period in question was
approximately ninety percent (90%) black and ten percent (10%)

A-39

white. Of the thirty women who were arrested under the policy,
ninety-six percent (96%) were black and four percent (4%) were
white.

The plaintiffs’ expert witness Dr. Martin Shapiro testified
that the disparity of racial composition between the MUSC
maternity population and the persons who tested positive for
cocaine was roughly 5.54 standard deviations from chance. Such a
deviation means that the likelihood that chance is the cause is less
than I in 100,000. Dr. Shapiro explained that some reason other
than chance must be the cause of the disparity.

The defendants’ expert statistician Dr. McCabe testified
that there was no Statistically significant difference between the
racial composition of the population of women who tested Positive
for cocaine and women who were arrested, and therefore no
disparity exists between white and black patients in these two
categories. According to Dr. McCabe there was no significant
racial disparity in implementing MUSC’s policy.

11. MUSC receives financial assistance from the United
States Department of Health and Human Services to render health
care. MUSC uses part of this financing in its OBGYN clinic to
treat indigent patients. There is no evidence in the record that any
other defendant receives relevant financial assistance from the
United States.

Conclusions of Law

A. This court has jurisdiction pursuant to 28 U. S.C. § 133
1 (1994).

B. The plaintiffs brought this action in part under Title VI
of the Civil Rights Act, Title 42, section 2000d. Section 2000d
provides “[no] person in the United States shall on the ground of
race, color, or national origin ... be subjected to discrimination
under any program or activity receiving Federal financial
assistance.” Section 2000d-4a defines “program” to “mean all of
the operations of... a department, agency, ... or other

A-40

instrumentality of the state ... or an entire corporation ... which is
principally engaged in the business of providing ... health care ...
any part of which is extended Federal financial assistance.”
Federal regulations provide that a state or its agency cannot
“directly or through contractual or other arrangements, utilize
criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race...”
45 C.F.R. §80.3(b)(2) .

C. While Title VI itself only prohibits intentional
discrimination, the regulations promulgated thereto clearly prohibit
a state agency from administering a program which has a
discriminatory impact on a protected person. Alexander v. Choate,
469 U.S. 287 (1985).

- D. The plaintiffs bear the ultimate burden of persuading
the court that the defendants’ violated Title V1 by establishing each
of the following elements: (1) each defendant is an entity which
receives funds from the federal government and is subject to the
requirements of Title V1; (2) the plaintiffs are persons protected
under Title V1 and the regulations promulgated pursuant thereto;
(3) the plaintiffs challenge a specific practice, procedure, or course
of action of the defendants; and (4) the practice, procedure, or
course of action of the defendants has an adverse discriminatory
effect on the plaintiffs.

E. MUSC is the only defendant which has been shown to
receive the requisite federal assistance. MUSC receives federal
assistance from the Department of Health and Human Services and
admits that it is subject to Title VI. Farthermore, the plaintiffs
conceded at trial that MUSC is the only defendant subject to the
requirements of Title VI.

F. Eight of the plaintiffs are black and therefore protected
by the regulations promulgated under Title VI.

G. The plaintiffs challenge a specific practice, procedure,
or course of action of the defendants. The plaintiffs challenge the
following practices: (a) application of the policy only at MUSC;

ee Co “

i ee
pom ah:

In hin he hla ee ea

A-4]

(b) application of the policy only to certain parts of MUSC; (c)
application of the policy only to cocaine: and (d) application of
testing criteria that would inevitably result in testing more blacks.

H. The plaintiffs must prove. that the practice, procedure,
or course of action caused the adverse discriminatory effect on
them. Walls v, City of Petersburg, 895 F.2d 188 (4th Cir. 1990);
Elston v, , 997 F.2d 1394, 1407
(11th Cir. 1993). For instance, the plaintiffs must show that the
policy itself, as opposed to MUSC’'s general or maternity
population, caused the disparate impact. None of the challenged
practices, procedures, or courses of action of the defendants have
an adverse discriminatory effect on the plaintiffs.

The plaintiffs introduced statistical evidence to prove their
claim of disparity which the defendants countered with their own
statistics. The evidence is conflicting, and the court concludes that
the plaintiffs have not proven racial disparity through statistics. To
do so, they must “offer statistical evidence of the kind and degree
sufficient to show that the practice in question caused” the adverse
impact on black patients. Elston, 997 F.2d at 1407 (emphasis
added). In other words, the practice must affect black patients
significantly more than white patients; if white patients are
affected equally, then there is no disparate impact. Edwards v.

»» 885 F.2d 1215, 1223 (4th Cir.
1989). “The standard by which this greater adverse impact
allegation must be tested is ‘whether the policy in question had a
disproportionate impact on the minorities in the total group to
which the policy was applied.” Edwards, 885 F.2d at 1223
(quoting Vv lates, 736 F.2d 983, 987 (4th
Cir. 1984)). Dr. Shapiro pointed to a large disparity between the
MUSC maternity population and those who tested positive for
cocaine, but the court concludes those are the wrong numbers to
compare. To determine if the policy had an adverse impact on
black women, one must compare the racial composition of women
who tested positive for cocaine with those actually arrested,
because the true impact of the policy was the arrest, not the UDS
testing. Dr. McCabe testified there is no statistical difference
between the racial composition of those two groups, and the court

4,

A-42

agrees. Therefore, the plaintiffs have not shown a statistically
significant disparate impact on black women in this case. Moultrie
v. Martin, 690 F.2d 1078 (4th Cir. 1982).

Even though the plaintiffs have not proven a statistically
significant disparate impact, the court has nevertheless considered
each challenged practice seriatim. The plaintiffs first challenge the
practice of employing the policy only at MUSC rather than at other
hospitals in the Charleston, South Carolina metropolitan area,
However, this challenge is irrelevant since MUSC is the only party
subject to Title VI and MUSC cannot control or implement the
policy at hospitals not controlled by MUSC. Therefore, the fact
that the policy was not applied at other hospitals is not a practice
that can be challenged under Title VI because it was not a practice
administered by a defendant subject to Title VI.

The plaintiffs next challenge the practice of applying the
policy only at certain discreet sections of MUSC As the court
found above, the policy was applied at all maternity departments
throughout MUSC, and the practice challenged by the plaintiffs
did not exist and cannot be used to prove disparate impact.

The plaintiffs further challenge the practice of applying the
policy only to cocaine users. They argue that cocaine is a drug
preferred by blacks, and thus a policy isolating it would
necessarily impact blacks. This argument fails for two reasons.
First, the alleged disparate use of cocaine by blacks causes the
disparate impact, not the isolation of cocaine by MUSC In this
instance, the plaintiffs have not proven that the practice of the
defendant causes the disparate impact. Secondly, the evidence
shows that white cocaine users were treated the same as black
cocaine users. If a patient had cocaine in her system, then she was
given a choice of treatment or jail. No disparity exists in t that
form of treatment.

Finally, the plaintiffs challenge the practice of employing
subjective testing criteria. By targeting symptoms such as “no
prenatal care” or “incomplete prenatal care” in deciding to test for
drugs, MUSC allegedly targeted blacks because they typically

A-43

have no or incomplete prenatal care. The plaintiffs have offered
little evidence to support the allegation that blacks typically have
incomplete or no prenatal care. In fact, they offered the testimony
of Dr. Chasnoff who testified that the criteria were medically
senseless and merely a proxy for selecting black women. This
testimony addresses the legal justification argument and is based
solely on Dr. Chasnoff’s opinion, not on statistical analysis.
Furthermore, the plaintiffs argue that because the number of black
women tested for drugs rose after the policy was implemented, the
criteria must a fortiori disparately impact blacks.

The court finds these arguments unpersuasive. MUSC
adopted these medially valid criteria to avoid the very subjectivity
in testing about which the plaintiffs complain. The evidence
presented by the defendants shows that whenever a patient
presented with one of the criteria, they were tested. There is no
evidence that the criteria were applied subjectively. The allegation
that more black maternity patients may have taken cocaine into
their systems than white maternity patients does not prove that the
policy disparately impacted black women. The plaintiffs have
failed to prove that the MUSC policy disparately impacts black
women in violation of Title VI.

I. However, assuming arguendo that the plaintiffs have
shown a prima facie case for disparate impact under Title VI, the

showing the following: (a) they had legitimate needs or goals; (b)
the challenged practice, procedure, or course of action was
necessary to meet those needs or goals; and (c) the practice,
procedure, or course of act ion adopted by the defendants Satisfied
those needs or goals. The court concludes that the defendants have
shown such.

J. MUSC officials stated that they implemented this policy
to identify mothers who abused cocaine while pregnant and
eliminate as far as possible the harmful effects of cocaine on
fetuses. After implementing a protocol to test for illegal drugs,
MUSC officials noticed an increase in the number of women who
tested positive for those drugs Furthermore, many women were not

A-44

responding to MUSC requests to get help for their drug abuse. The
policy at issue was then adopted and made mandatory throughout
MUSC.

MUSC states that the policy isolates cocaine and is
designed to get help to those who need it most: mothers abusing
cocaine The criteria were developed based on symptoms MUSC
officials knew were associated with Cocaine abuse, and made
mandatory to supplant random or subjective application of UDS

_testing. These criteria limit testing to isolate potential problem
patients for testing, and the UDS further narrows the field of
potential patients. The court concludes that the policy was
necessary to help cocaine-dependant mothers and their babies

and actually achieved hat goal as evidenced by he fact that a
substantial majority of plaintiffs stopped abusing cocaine.

K. Since the defendants have rebutted the plaintiffs’ prima
facie case (if the same were in fact made out), the plaintiffs can
only carry their ultimate burden of persuasion by demonstrating
that other, less discriminatory practices would be as comparably
effective as the challenged practice, but would result in less
disproportionality. Wards Cove Packing Co. v. Atonio, 490 U.S.
642, 660-61 (1989); Elston v. Talladega County Bd. of Educ., 997
F.2d 1394, 1407 (11th Cir. 1993). The plaintiffs propose the
following procedures, practices, or courses of action would result
in less disproportionality: (a) focussing on all illegal drugs and
alcohol, not just cocaine; or (b) testing all maternity patients.

The criteria set out in the policy were developed to
minimize the costs of testing, because focussing on all illegal
drugs or testing all patients would be prohibitively expensive and a
waste of resources. MUSC cannot afford to implement the policy
as suggested by the plaintiffs because of the sheer number of
patients they treat every year. “Factors such as the cost or other
burdens of proposed alternative selection devices are relevant in
determining whether they would be equally as effective as the
challenged practice in serving the [defendant’s] legitimate ...
goals.” Wards Cove, 490 U.S. at 661. The court concludes these

eee

A-45

alternatives suggested by the plaintiffs, while laudable goals, are
not as comparably effective as the challenged practices of MUSC.
Therefore, the plaintiffs have failed to Carry their ultimate burden
of persuasion as required by Title VI. Since the plaintiffs have not
prevailed on this claim, the court hereby directs the clerk to enter
judgment in favor of the defendants on the plaintiffs’ claims
brought pursuant to Title VI and the regulations promulgated
thereunder and to dismiss this action with prejudice. !

AND IT IS SO ORDERED.

/s/
C. WESTON HOUCK
CHIEF UNITED STATES
DISTRICT JUDGE

Charleston, South Carolina
September 29, 1997

' The plaintiffs’ motion to substitute parties filed on April 11, 1997 is
rendered moot by this order.

A-46

EXCERPT OF TRANSCRIPT OF JURY CHARGE

[PAGE 17]

l IN OTHER WORDS, THE EVIDENCE MUST
AT LEAST

2 REASONABLY LEAD YOU TO THE INFERENCE
THAT THE DEFENDANTS

3 POSITIVELY OR TACITLY CAME TO A MUTUAL
UNDERSTANDING TO TRY TO

4 ACCOMPLISH A COMMON AND IMPROPER PLAN.

5 LET’S LOOK MORE CLOSELY NOW AT THE
CONSTITUTIONAL

6 CLAIMS AND WHAT IS NECESSARY TO BE
SHOWN FOR THERE TO BEA

7 VIOLATION OF THE FIRST THE FOURTH
AMENDMENT AND THEN NEXT THE

8 FOURTEENTH AMENDMENT.

9 AS I STATED EARLIER, THE FOURTH
AMENDMENT STATES IN

10 PERTINENT PART THAT THE RIGHT OF THE
PEOPLE TO BE SECURE IN

11 THEIR PERSONS AGAINST UNREASONABLE
SEARCHES AND SEIZURES SHALL

12 NOT BE VIOLATED. THE FOURTH AMENDMENT,
WHICH I JUST READ,

13 USUALLY FOCUSES ON POLICE ACTION. WHEN
WE RUN INTO THE FOURTH

14 AMENDMENT, WE ALMOST ALWAYS DO IT
WHERE A POLICE OFFICER HAS

15 MADE AN IMPROPER SEARCH OR AN IMPROPER
SEIZURE OR PROPERTY. A

16 SEARCH OR SEIZURE WITHOUT A WARRANT.

17 NORMALLY ON THE OTHER SIDE OF THE
COIN, PERSONNEL

18 WORKING IN A HEALTH CARE FACILITY, SUCH
AS THE MEDICAL

19 UNIVERSITY OF SOUTH CAROLINA, COULD
ROUTINELY TEST A PATIENT’S

1]

12

A-47

URINE OR TEST A PATIENT’S BLOOD OR
PERFORM OTHER DIAGNOSTIC
TESTS WITHOUT BEING SCRUTINIZED UNDER
THE FOURTH AMENDMENT.
BUT WHAT MAKES THIS CASE UNUSUAL AND
WHAT BRINGS IT WITHIN THE
COVERAGE OF THE FOURTH AMENDMENT IS THE
FACT THAT YOU HAVE LAW
ENFORCEMENT AND MEDICAL SERVICE PEOPLE
ACTING TOGETHER.

IT IS THE FACT THAT THE SO-CALLED
SEARCH, THE TAKING

[PAGE 18]

OF THE URINE SAMPLE AND THE TESTING OF IT
FOR COCAINE, WAS TO
BE USED NOT ONLY FOR MEDICAL DIAGNOSIS,
BUT IF IT WAS POSITIVE
IT WAS ALSO GOING TO BE USED FOR POLICE
AND PROSECUTORIAL
PURPOSES. IT IS THAT CONCERT, THAT JOINING
TOGETHER BY THESE
TWO GROUPS OF PEOPLE TO PERFORM THIS
SEARCH THAT BRINGS IT
WITHIN THE SCOPE OF THE FOURTH
AMENDMENT.

THE FOURTH AMENDMENT SPEAKS OF
UNREASONABLE SEARCH
AND SEIZURES. USUALLY WHEN WE SPEAK OF
UNREASONABLE SEARCHES
AND SEIZURES WE ARE SPEAKING OF SEARCHES
AND SEIZURES WHERE
THERE IS NOT A SEARCH WARRANT. THERE ARE.
HOWEVER, UNDER OUR
LAW, A NUMBER OF RECOGNIZED EXCEPTIONS
TO THAT RULE. THERE
ARE A NUMBER OF CASES IN WHICH A
WARRANTLESS SEARCH AND

A-48

SEIZURE CAN BE REASONABLE UNDER THE
FOURTH AMENDMENT TO THE
CONSTITUTION.

THERE WERE NO SEARCH WARRANTS IN
THIS CASE. THERE
WERE SOME SEARCH WARRANTS ISSUED LATER
IN THE PROSECUTION TO
OBTAIN MEDICAL RECORDS, BUT THERE WERE
NO SEARCH WARRANTS
ISSUED BY A MAGISTRATE OR ANY OTHER
PROPER JUDICIAL OFFICER
PERMIT THESE URINE SCREENS TO BE TAKEN.
THERE NOT BEING A
WARRANT ISSUED, THEY ARE UNREASONABLE
AND IN VIOLATION OF THE
CONSTITUTION OF THE UNITED STATES, UNLESS
THE DEFENDANTS HAVE
SHOWN BY THE GREATER WEIGHT OR
PREPONDERANCE OF THE EVIDENCE
THAT THE PLAINTIFFS CONSENTED TO THOSE
SEARCHES.

NOW, THERE IS A LAW THAT HAS BEEN
READ TO YOU HAVING
TO DO WITH THE REPORTING OF CHILD ABUSE.
IT’S SECTION

eke

A-49

JOINT EXHIBIT #1

Joseph P. Riley, Jr. City of Charleston Reuben M. Greenberg

Mayor South Carolina Chief of Police
POLICE DEPARTMENT
TO: Central Detectives
FROM: Captain R. H. Roberts

SUBJECT: Operational Guidelines
DATE: 12 October 1989

Pregnant women abusing illegal drugs is a growing problem that
poses potentially fatal consequences for the unborn child. This
threat to human life has necessitated police intervention in those
instances where pregnant females have rejected Opportunities to
voluntarily obtain assistance in stopping their abuse of dangerous
drugs.

For the purpose of this memorandum, illegal drugs are defined as:
heroin, crack/cocaine, amphetarnines, and any other drug illegally
ingested by the patient that medical authorities deem a threat to the
life and safety of the unborn child. :

Effective immediately, the operational guidelines listed below are
to be followed when responding to complaints from MUSC
personnel regarding drug abuse by pregnant women:

1. C F z

MUSC personnel will notify the Detective Division of drug abuse
by pregnant women when: aa

a. the patient has tested Positive for drug abuse and,
after counseling and warning, has failed to keep

A-50

scheduled appointments for pre-natal care and/or
substance abuse therapy. In this instance a
criminal report will be made and an arrest warrant
issued for the accused. Depending upon
circumstances, the arrest warrant may be delivered
to Sgt. J. Doyle, Warrants Division, for service.

Central Detectives
12 October 1989
Page Two

b. the patient has tested positive a second time for
drug use. In this instance the subject will be taken
into custody immediately upon her medical
release. Time constraints may dictate an arrest
without warrant.

é. the patient delivers a child that tests positive for
illegal drugs. In this instance a criminal report
will be made and the arrest warrant served on the
patient immediately after her medical release.

DSS will be notified to take the newborn child into
protective custody.

Aggravated circumstances and/or refusal by the patient to agree to
voluntary assistance may justify arrest at the first report (1a) of
drug abuse.

2. EVIDENCE

Probable cause to arrest is not limited to the presence of medical
test results indicating the presence of illegal drugs in the patient’s
system. Written or oral statements made by the patient-to third
parties admitting use of illegal drugs is sufficient to justify an
arrest.

~~

Detectives must obtain copies of all medical records pertinent to
the criminal charges when receiving complaints from MUSC
personnel. It is also beneficial to obtain written documentation

A-51

that the patient’s condition permits incarceration in a jail facility.

3 ES TO B

The following criminal charges will t= filed against arrestees:
a. if the pregnancy is 27 weeks or less -

Possession of

S.C. Code 44-53-370

b. if the pregnancy is 28 weeks or more -
Possession of
S.C. Code 44-53-370
AND
Distribution to persons under eighteen
S.C. Code 44-53-440

Central Detectives
12 October 1989

Page Three
e. if the patient delivers while testing positive for
illegal drugs and/or her newborn tests positive for
drugs -
Unlawful neglect of a child
S.C. code 20-7-50

4. QUESTIONING OF SUSPECT

As in the case of all arrests, the suspect shall be questioned
concerning the charges against her and a written record made of
same. Every effort should be made to ascertain the identity of the
subject who provided the illegal drugs to the suspect.

5. MUSC CONTACT

Ms. Shirley B. Brown, R.N.
Case Manager - Obstetrics
MUSC

792-2123

A-52

6. CASE ASSIGNMENT

Detective Geretha Waring will serve as the lead investigator in
cases of this nature. Detectives I. Choice and Ruley Davis wi!l
assist her. MUSC personnel have been instructed to contact the
police dispatcher and request a Crimes v. Persons detective for
cases requiring immediate response after normal business hours.

oe: Chief Greenberg
Major Oliver
Sgt. Doyle
Solicitor Charles M. Condon
_ Ms. Shirley Brown, RN, MUSCV

kkk

ma a

A-53
JOINT EXHIBIT #2
POLICY M-7

MEDICAL UNIVERSITY OF SOUTH CAROLINA
MUSC MEDICAL CENTER POLICY MANUAL

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING

PREGNANCY
Page | of i2
PURPOSE:
To ensure appropriate management of patients abusing illegal
drugs during pregnancy.
POLICY:

Pregnant women abusing illegal drugs is a growing problem which
poses potentially fatal consequences for the unborn child. This
threat to human life has necessitated medical/police intervention in
those instances where pregnant females have rejected opportunities
to voluntarily obtain assistance in stopping their abuse of
dangerous drugs.

PROCEDURE:
MUSC Medical Center staff will follow the following steps to
identify/assist pregnant patients suspected of drug abuse:

I. Identification of Drug Abusers

Pregnancies to be screened by urine drug screens:

1. No prenatal care

2. Late prenatal care after 24 weeks gestation
3. Incomplete prenatal care

4. Abruptio placentae

5. Intrauterine fetal death

6.

Preterm labor “of no obvious cause”

A-54

7. TUGR “of no obvious cause”
8. Previously known drug or alcohol abuse
9. Unexplained congenital anomalies

SUBJ : MANAGE DR

PREGNANCY

Page 2 of 12

B. Chain of custody will be followed on obtaining
urine samples.

II. Education Efforts

A. Prenatal visit (initial to clinic) or initial

hospitalization.

a

Video presentation of harmful effects of drug
abuse during pregnancy.

Written statement from OB service regarding
harmful effects of drug abuse during pregnancy
(attached).

Statement to be signed by the mother, attesting
that she has received counseling (attached).

B. Protocol for follow-up after identification of drug

abuse during pregnancy by positive urine drug
screen:

l.

The Case Manager for OB or her designee will
be notified by the resident of positive urine
drug screen : on nights or holidays the Patient
Care Coordinators will be notified.

Video presentation of harmful effects of drug
abuse during pregnancy will be shown by
nursing staff.

EE

A-55

3. The Case Manager for OB or designee will
give the written statement from OB service
regarding harmful effects of drug abuse during
Pregnancy to the patient (attached).

4. Referral to Substance Abuse Clinic will be
made by the OB Case Manager or designee and
the OB clinic

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
se Save ee nena ae SEES NAS
PREGNANCY

Page 3 of 12

Appointment will be made by the ward clerk.
The OB Case Manager or designee will give
the appointment letter to the patient (attached).

5. The OB Case Manager or designee will give
the written statement from the solicitor’s office
to the patient (attached).

6. If any clinic appointments (substance abuse or
OB Clinic) are not kept, the police department
will be notified. Substance abuse will notify
the police department for any substance abuse
appointments missed or positive urine drug
screens obtained by them (attached statement
from Capt. Roberts).

7. If any further drug screens are Positive, police
department to be notified and patient will be
arrested. (reference Capt. Roberts Statement).

Ill. Protocol for follow-up after identification of drug abuse
for patient who has delivered an infant:

1. Notify the OB Case Manager or designee: on
nights, holidays, weekends, notify OB Patient
Care Coordinator.

A-56

2. Notify police department (reference Capt.

Roberts statement).
Date Originated: Legal Review Date: 3/93
Date Reviewed: 1/91, 3/93
Date Revised: Date Effective: 11/89, 3/93

Committee Approved: 3/93

MEDICAL DIRECTOR Date

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
PREGNANCY

Page 4 of 12

MEDICAL UNIVERSITY OF SOUTH CAROLINA
Department of Obstetrics # Gynecology

Maternal and Fetal Medicine

(803) 792-2864

TO OUR PATIENTS: 171 Ashley Avenue
Charleston, South Carolina 29422-2233

The increasing use of street drugs, particularly Cocaine and crack,
by pregnant women is a cause for great concern. The use of these
drugs has been strongly associated with complications such as the
death of the baby (stillbirth), premature delivery, bleeding due to
the early separation of the afterbirth (abruption placenta), retarded
growth and mental development of the baby, and birth defects.
Drug abuse during pregnancy is also associated with withdrawal
symptoms and sudden death (SIDS) of the infant. It is very
important that you understand the risks, not only to yourself, but
also to your unborn baby if you are using drugs during pregnancy.

If you are using drugs, please stop! If you are unable to stop,
please let your doctor know. We want to help mothers get off
drugs for the benefit of both you and your baby. We will provide
you counseling about the harms of drug abuse and will make

iii a

A-57

arrangements for you to be seen at the Substance Abuse Clinic.
We realize that drug abuse is a very difficult problem and we will
do all that we can to help you.

If, however, we continue to detect evidence of drug abuse or a
failure to follow recommended treatment, we will take action to
protect your unborn child. The Charleston Police, the solicitor’s
office, and the Protective Service Division of DSS are also
committed to the protection of unborn and newborn children from
the harms of illegal drug abuse.

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
St _SASNAGEMENT OF DRUG ABUSE DURING
PREGNANCY

Page 5 of 12

We hope that you can understand the tragedy which is being
caused by the continued use of illegal drugs during pregnancy.
This policy of providing warning, counseling and treatment for
pregnant women using illegal drugs is the best way for us to help.
For those women who fail this treatment, we must ask for help to
protect the life and health of our most innocent unborn children.

Sincerely,

Department of Obstetrics and Gynecology
Medical University of South Carolina Medical Center

MUSC MEDICAL CENTER

I have seen a video on substance abuse and have been advised of
the risks to myself and my baby. I understand that the MUSC
Medical Center staff is willing to assist me in obtaining assistance
for drug abuse treatment.

Patient’s Signature:

Patient’s Social Security Number:
Date:
Witness’ Signature:

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
— NANCY 2

Page 6 of 12
MUSC MEDICAL CENTER
Date:
To:

(Patient’s Name)

(Patient’s Social Security Number)
From: Medical University >f South Carolina Medical Center
During your recent examination you tested positive for drugs.

These drugs may cause immeasurable harm to your unborn child.
We have made an appointment for you at our Prenatal Clinic

at__o’clock onthe __ day of 19__. Wehave
also made an appointment for you with the Charleston County
Substance Abuse facility at at o’clock on
the _ dayof ,19__. We expect you to keep
these appointments.

I have read and understand this and I agree to meet these
appointments for my benefit and that of my unborn child.

(L.S.)

Patient’s Signature

Witness’ Signature

A-59

: MANAGEMENT OF D AB DURIN

PREGNANCY
Page 7 of 12

THE STATE OF SOUTH CAROLINA
SOLICITOR, NINTH JUDICIAL CIRCUIT
CHARLESTON AND BERKELEY COUNTIES
County Court House
POST OFFICE BOX 58
CHARLESTON, S.C. 29402-0058
TELEPHONE: 803-723-6714

October 18, 1989

Reference: _ Substance Abuse During Pregnancy

TO WHOM IT MAY CONCERN:

During your recent examination you tested positive for drugs. You
have been counseled about the harmful effects of drugs to you and
your baby and referred to Substance Abuse and Pre-Natal Care by
the Medical University. By these referrals you are being afforded
an opportunity to rehabilitate yourself for the good of yourself and
your baby. Please understand that by using drugs during
pregnancy you are risking death or at least severe long-term
harmful effects to your baby. If you fail to attend Substance
Abuse and Pre-Natal care you will be arrested by Charleston City
Police and prosecuted by the Office of Solicitor.

Sincerely yours,

Charles Molony Condon
Solicitor
CMC/aom

A-60

SUBJECT: AGEMENT OF DRUG ABUSE D
PREGNANCY

Page 8 of 12

I have read and received a copy of the above letter.

PATIENT WITNESS

DATE:

WITNESS

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
PREGNANCY

Page 9 of 12
POLICE DEPARTMENT
TO: Central Detectives
FROM: Captain R. H. Roberts
SUBJECT: Operational Guidelines
DATE: 12 October 1989

Pregnant women abusing illegal drugs is a growing problem that
poses potentially fatal consequences for the unborn child. This
threat to human life has necessitated police intervention in those
instances where pregnant females have rejected opportunities to
voluntarily obtain assistance in stopping their abuse of dangerous
drugs.

For the purpose of this memorandum, illegal drugs are defined as:
heroin, crack/cocaine, amphetamines, and any other drug illegally
ingested by the patient that medical authorities deem a threat to the
life and safety of the unborn child.

Effective immediately, the operational guidelines listed below are
to be followed when responding to complaints from MUSC

personnel regarding drug abuse by pregnant women:

A-61

1. RECEIPT OF COMPLAINT

MUSC personnel will notify the Detective Division of drug abuse
by pregnant women when:

a. _ the patient has tested positive for drug abuse and, after
counseling and warning, has failed to keep scheduled
appointments for pre-natal care and/or substance abuse therapy. In
this instance a criminal report will be made and an arrest warrant
issued for the accused. Depending upon circumstances, the arrest
warrant may be delivered to Sgt. J. Doyle, Warrants Division, for
service.

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
St EU EMEN! OF DRUG ABUSE DURING
PREGNANCY

Page 10 of 12

Central Detectives
12 October 1989
Page Two

b. the patient has tested positive a second time for drug use. In
this instance the subject will be taken into custody immediately
upon her medical release. Time constraints may dictate an arrest
without warrant.

c. the patient delivers a child that tests positive for illegal drugs.
In this instance a criminal report will be made and the arrest
warrant served on the patient immediately after her medical
release. DSS will be notified to take the newborn child into
protective custody.

Aggravated circumstances and/or refusal by the patient to agree to
voluntary assistance may justify arrest at the first report (la) of
drug abuse.

2. EVIDENCE

A-62

Probable cause to arrest is not limited to the presence of medical
test results indicating the presence of illegal drugs in the patient's
system. Written or oral statements made by the patient to third
parties admitting use of illegal drugs is sufficient to justify an
arrest.

Detectives must obtain copies of all medical records pertinent to
the criminal charges when receiving complaints from MUSC
personnel. It is also beneficial to obtain written documentation
that the patient’s condition permits incarceration in a jail facility.
SUBJECT: MANAGEMENT OF DRUG ABUSE DURING

PREGNANCY
Page 11 of 12

3. CHARGES TO BE FILED

The following criminal charges will be filed against arrestees:
a. if the pregnancy is 27 weeks or less - Possession of
S.C. Code 44-53-370

b. if the pregnancy is 28 weeks or more - Possession of

S.C. Code 44-53-370
AND
Distribution to persons under eighteen
S.C. Code 44-53-440

Central Detectives
12 October 1989
Page Three

c. if the patient delivers while testing positive for illegal drugs

and/or her newborn tests Unlawful neglect of a child
S.C. code 20-7-50

4. QUESTIONING OF SUSPECT

——————E—E==—

A-63

As in the case of all arrests, the suspect shall be questioned
concerning the charges against her and a written record made of
same. Every effort should be made to ascertain the identity of the
subject who provided the illegal drugs to the suspect.

SUBJECT: MANAGEMENT OF DRUG ABUSE DURING
PREGNANCY

Page 12 of 12
5. MUSC CONTACT

Ms. Shirley B. Brown, R.N.

6. CASE ASSIGNMENT

Detective Geretha Waring will serve as the leas investigator in
cases of this nature. Detectives I. Choice and Ruley Davis will
assist her. MUSC personnel have been instructed to contact the
police dispatcher and request a Crimes v. Persons detective for
cases requiring immediate response after normal business hours.

cc: Chief Greenberg
Major Oliver
Sgt. Doyle
Solicitor Charles M. Condon
Ms. Shirley Brown, RN, MUSC

Date Originated: Legal Review Date: 3/93
Date Reviewed: 3/93
Date Revised: Date Effective: 3/93

MEDICAL DIRECTOR Date

kkk

A-64

JOINT EXHIBIT #15
Date: October 17, 1989
Subject: Policies concerning drug abusing pregnant women

On October 12, 1989 members of the Medical University of South
Carolina, Charleston City Policy Department and the Solicitor’s
Office met to discuss forming a policy as it relates to dealing with
pregnant women who abuse illegal drugs. In the past, officials as
the Medical University tried to deal with this problem in-house
through counseling and referrals to substance abuse and pre-natal
care. Because it is a problem of enormous proportion the Medical
University of South Caroline has enlisted assistance of the
Solicitor’s Office and Charleston City Policy Department.

As a result of the October 12th meeting we established the
following guidelines of proposals:

l. That the Medical University of South Carolina will screen
various obstetric admissions if they feel that the patient is
in a risk category for abuse of illegal drugs.

a That if the urine screen comes up positive for illegal drugs
the patient will be counseled of the harmful effects of
drugs to her baby, referred to substance abuse and
scheduled for pre-natal care. If the patient attends
substance abuse and pre-natal care and successfully
completes same, there will be no arrest on said patient. On
the other hand, if said patient does not attend and
successfully complete substance abuse counseling and pre-
natal care that patient will be arrested by Charleston City
Police Department and prosecuted by the Solicitor’s
Office.

3. That if a patient comes into the Medical University of
South Carolina and tests positive for a second time, the
Medical University of South Carolina will contact the
Charleston City Police Department and the Charleston

A-65

City Police Department will as soon as possible arrest said
patient.

That if a patient delivers a child and the mother and/or
child tests positive for illegal drugs the Medical University
will contact the Charleston City Police Department and
they will as soon as medically possible arrest said patient.

That the following criminal charges could apply:

A. If the baby is yet unborn and not medically viable
the mother could be charged with:

l. Possession of controlled substance S.C.
Code 44-53-370

B. If the baby is yet unborn but medially viable the
mother could be charged with:

l. Possession of controlled substance S.C.
Code 44-53-370

2. Distribution to persons under eighteen
S.C. Code 20-7-50

3 Unlawful neglect of a child S.C. Code 20-
7-50

Cc. If the mother delivers and she and/or the newborn
tests positive for drugs the mother could be

charged with:
l. Possession of controlled substance S.C.
Code 44-53-370

2. Distribution to persons under eighteen
S.C. Code 20-7-50

A-66

3. Unlawful neglect of a child S.C. Code 20-
7-50

a That this written policy prepared by the Solicitor’s Office
is just a working draft and not a final draft. The intention
of this policy is to protect children from their drug abusing
mothers.

cc: Chief Greenberg Dr.Newman Ms. Shirley Brown
Captain Roberts Dr. Horger Joe Goode, Esquire
Solicitor Charles M. Condon

eek

A-67

PLAINTIFF’S EXHIBIT #2

OFFICE OF THE GENERAL COUNSEL
(803) 792-4063

MEDICAL UNIVERSITY OF SOUTH CAROLINA
171 Ashley Avenue
Charleston, South Carolina 29425-1015

August 23, 1989

The Honorable Charles Condon
Solicitor, Ninth Judicial Circuit
2 Courthouse Square
Charleston, SC 29401

RE: _ Drug Positive Newborns
Dear Charles:

I read with great interest in Saturday’s newspaper accounts
of our good friend, the Solicitor for the Thirteenth Judicial Circuit,
prosecuting mothers who gave birth to children who tested positive
for drugs. Evidently the solicitor is prosecuting under the abuse
and neglect statute. As you can imagine, MUSC Medical Center
has a substantial number of newborns who do test positive to
drugs, especially cocaine and heroin. If a child is born dead, this
death is immediately reported to our medical examiner who orders
an autopsy. In other cases where the children survive, these cases
are referred to DSS for home evaluation and assistance to the
mother.

Please advise us if your office is anticipating future
criminal action and what if anything our Medical Center needs to
do to assist you in this matter.

JCG,JR/mrr

A-68

Sincerely,

/s/

Joseph C. Good, Jr.
General Counsel

Received

Aug 24, 1989
SOLICITOR
9TH CIRCUIT

“net

A-69

PLAINTIFF’S EXHIBIT #6

State of South Carolina
NINTH JUDICIAL CIRCUIT
OFFICE OF THE SOLICITOR
CHARLES MOLONY CONDON
Solicitor

Charleston County Berkeley County
Courthouse Courthouse
Post Office Box 58 300 California Avenue
Charleston, SC 29402 Moncks Corner, SC 2946]
Phone: 803-723-5714 Phone: 803-723-0269

August 31, 1989

The Honorable Reuben Greenberg
Chief, Charleston Police Department
180 Lockwood Boulevard
Charleston, South Carolina 29403

Dear Reuben:

Since both our schedules seem to be particularly
demanding this week, I thought perhaps I would communicate my
thoughts to you via this letter.

The attached letter concerns the forming of a task force to
consider possible prosecution of the mothers of drug affected
babies also known as “crack babies.” What I would ask you to
consider is the co-chairing of this group with me.

I am the process of making arrangements with the Medical
University for a date and meeting space. In attendance, I anticipate
a relatively small group of professionals representing the
Department of Social Services, the Medical University, the Drug
Rehabilitation Program, the City Police, and the Office of
Solicitor. Specifically, I have thought of including Dr. James
Edwards, President, Medical University of South Carolina, Dr.
Charles Darby, Professor and Chairman of the Department of

A-70

Pediatrics, Dr. Abner Levkoff, Professor of Pediatrics, Dr. Sarah
Schuh, Assistant Professor of Pediatrics, Dr. Sandra Conradi,
Chief Medical Examiner, Ms. Lynn Fredericks, Director of Social
Work, Medical University of South Carolina, Joseph C. Good, Jr.,
General Counsel, Medical University of South Carolina, Mr. Frank
Johnson, Executive Director, Charleston County Substance Abuse
Commission, Mr. William Knowles, Director, Department of
Social Services, Ms. Nancy Worley, Program Director,
Department

The Honorable Reuben Greenberg
August 31, 1989

page two continued

of Social Services, Francis Cornley, Assistant Solicitor for Child
Abuse, and Ms. Cindy Legare, Investigator for Child Abuse, Ninth
Judicial Circuit. Please feel free to add any individuals that you
think would be pertinent to our topic or delete any names that
possibly could be unnecessary. In such a meeting we can become
aware of each organization’s position and get their input in
forming a policy regarding the prosecution of the mothers.

Please let me know if you are interested. The tentative
date for the meeting is Wednesday, September 20th at 10:00 am in
the Vice-President’s Conference Room which I understand is
adjacent to the President’s offices. If it is agreeable and you wish
to co-host this meeting, I will forward the letters to you by courier
for your signature. It is my hope that we can get this going by
mid-September.

I look forward to hearing your response. Since this is a
particularly busy time, please do not feel that it is necessary to
respond by letter. Just call my secretary and she will be glad to
relay your decision to me.

A-71

With my very best regards, I remain

Sincerely yours,
/s/

‘Charles Molony Condon
Solicitor

CMC/gf

P.S. I would like to add my hearty congratulations on your most
recent award. Certainly, it nice to be so honored and even nicer to
have a tangible reward!

kkk

A-72
PLAINTIFF'S EXHIBIT #28

Office of the General Counsel

Medical University of South Carolina
171 Ashley Avenue
Charleston, South Carolina 29425-1015

December 19, 1989

Pat Hudson, Esq.

Senior Assistant Attorney General
Office of the Attorney General
Post Office Box 11549

Columbia, South Carolina 29211

RE: |MUSC - Policy on Management of Drug Abuse
During Pregnancy

Dear Pat:

I hope this letter finds you and your family well and ready
for an enjoyable Christmas and a very prosperous New Year.

I have taken the liberty of enclosing The Medical
University of South Carolina’s newly enacted policy for the
management of drug abuse during pregnancy. As you know the
numbers of expectant mothers giving birth to drug addicted babies
has increased drastically within the last few years. Babies born to
mothers who have taken or used cocaine or other type drugs during
pregnancy are usually born premature and their chance of survival
is quite slim. Those children that do survive are frequently,
severely mentally or physically handicapped and many continue to
be wards of the state.

Several months ago we were contacted by Solicitor
Condon who wanted to meet with representatives of the medical
profession, the drug abuse counsellors, social workers, and law
enforcement to educate each other as to the seriousness and

eee

A-73

severity of this problem and to plan a united action to address it.

At the suggestion of law enforcement and the solicitor’s office and
armed with Section 20-7-510 of The South Carolina Code of
Laws, The Medical University of South Carolina was asked to
develop and implement a management program for expectant
mothers who tested positive to cocaine or other similar drugs. This
policy was not intended to be punitive and was not to be employed
in a discriminatory matter.

“An equal opportunity m/f affirmative action employer”

Pat Hudson, Esq.
December 19, 1989
Page 2

Expectant mothers admitted to our-facilities who met a
certain profile based on our medical experience were determined to
have given reasonable cause to medical Officials to do a blood
Screen on the patient pursuant to the blanket consent form signed
by that patient upon entry into our facilities. If the test returned
positive for cocaine or similar drugs the mother was informed that
she must attend prenatal counselling and an appointment was made
for her at the Charleston County

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0495%3A02. Public record. Not legal advice.