Amicus Curiae Brief — Ferguson v. Charleston

IN THE

Supreme Court of the tin

CRYSTAL M. FERGUSON, ef al.,

Petitioners,

V. ‘

THE CITY OF CHARLESTON, SOUTH CAROLINA, ef al,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

Motion for Leave to File as Amici Curiae and Brief in

Support of the Petition for Certiorari of the American Public

Health Association, American Society of Addiction Medicine,

Society of General Internal Medicine, South Carolina Medical

Association, National Association of Alcoholism and Drug

Abuse Counselors, Inc., National Council on Alcoholism and

Drug Dependence, American Nurses Association, South

Carolina Nurses Association, Association of Reproductive

Health Professionals, American Medical Women’s

Association, National Women’s Health Network, National

Association of Social Workers, Inc., Association for Medical

Education and Research in Substance Abuse, Society for

Medical Anthropology, California Medical Association,

California Society of Addiction Medicine, Institute for Health

and Recovery, Consortium for Substance Abusing Women

and their Children and Robert G. Newman, M.D.

DAVID T. GOLDBERG *DANIEL N. ABRAHAMSON

227 Garfield Place AYELET WALDMAN

Brooklyn, New York 11215 THE LINDESMITH CENTER

Telephone: (718) 789-5584 1095 Market St., Suite 505

San Francisco, CA 94103

Telephone: (415) 554-1900

Attorneys for Amici Curiae

(*Counsel of Record)

RCN en AL TIES

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. + 1-800-347-8208

MOTION FOR LEAVE TO FILE BRIEF AS AMICI

CURIAE IN SUPPORT OF THE PETITION FOR

CERTIORARI

Pursuant to Sup. Ct. Rule 37.2(b), Amici -- physicians,

nurses, counselors and public health practitioners from around

the country and their professional associations -- move for leave

to file the attached brief Amici Curiae in support of the Petition

for Certiorari filed by Crystal Ferguson, ef a/., seeking review of

Ferguson v. City of Charleston, 186 F.3d 469, 479 (4" Cir.

1999),

In the decision below, a divided panel of the Fourth

Circuit upheld a governmental policy whereby the trust inherent

in the doctor-patient relationship was manipulated by law

enforcement authorities to obtain bodily fluids from indigent

pregnant women for use as incriminating evidence.

Amici have recognized expertise in the areas of the

physician-patient relationship, the need to maintain the

confidentiality of personal medical information, maternal and

neonatal health, and the treatment and prevention of substance

abuse among pregnant and parenting women. This brief is

offered to highlight basic medical misunderstandings that

infected the decision upholding the policy’s constitutionality and

to alert this Court to the real harms that the Fourth Circuit’s

decision, if left undisturbed, will cause individuals, their families

and their communities.

Amici, from their vantage point as health care and social

services providers and medical researchers, wish to bring to the

Court’s attention the troubling consequences of the Ferguson

decision not only for the patients receiving treatment at the

Medical University of South Carolina but for all patients.

This motion is necessary because Respondents have

declined to consent to the filing of the following proposed brief.

INTEREST OF AMICI CURIAE

As the names of the Amici organizations suggest, and the

descriptions of these organiizations appended to the attached

proposed brief underscore, Amici comprise a broad array of

South Carolina and national medical, social services, legal

services. and substance abuls¢ treatment organizations, with

memberships that range fiom direct service providers to

researchers. academics, and theorists. What unites these

organizations is a recognition that substance abuse is a treatable

disease but that the Fourth Circuit’s decision in Ferguson

threatens to stymie the deliveity of effective treatment to some of

the most vulnerable patients iin the community.

Amici share at least two basic, interrelated interests in this

case. First, Amici, many of whom provide prenatal and

substance abuse treatment to pregnant women, understand that

the Ferguson decision strikes at the core of the physician-patient

bond, undermining the trust! and confidence essential to the

critical relationship between |health care professionals and their

pregnant patients. To compromise the doctor-patient relationship

is to compromise care. The result will be damaged health,

increased suffering, escalating health care costs, and decreased

life expectancy.

Second, Amici are comcerned that the decision below will

deter pregnant women from obtaining adequate prenatal care,

including substance abuse treatment. Amici, individually and as

a whole, have professional aind ethical interests in promoting

women’s and children’s healtth, and wish to apprize this Court of

the tragic health implications of the Fourth Circuit’s decision for

pregnant women and their chiildren.

Respectfully submitted,

“

DANIEL N. ABRAHAMSON

DAVID T. GOLDBERG *DANIEL N. ABRAHAMSON

227 Garfield Place AYELET WALDMAN

Brooklyn, New York 11215 The Lindesmith Center

Telephone: (718) 789-5584 1095 Market St.. Suite 505

San Francisco, CA 94103

Telephone: 415/554-1900

Attorneys for Amici Curiae

*(Counsel of Record)

Table of Authorities

Statement of Interest

Summary of Argument

ARGUMENT

I.

II.

III.

Conclusion

Table of Contents

The Appellate Panel Majority Committed

a Significant Fourth Amendment Error .......

The Fourth Circuit’s Disregard for

Important Medical Considerations Has an

Ongoing, Adverse Effect on Public Health .....

A. The Intrusion on Privacy

re ER on oie he ey ie ala

B. Enlisting Care Providers

in Law Enforcement Is Inimical

Oh Tak Pee EEN 6. Sch wkd sdb cawiiaaks

Cocaine Addiction Among Pregnant Women

Does Not Present a “Special Need” ..........

APPENDIX

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TABLE OF AUTHORITIES

Constitutional and Statutory Provisions

U.S. Const., amend. 4 .......-e eee ee eee eeeee: passim

42 U.S.C. § 2W9OdE2 occ ivccnsncnnenwetgerusreess 11

42 U.S.C. § SGI) . «005 cence nee tns eae ees ee 1]

Cases

Camara v. Municipal Court, 387 U.S. 523, $37 (1967) 6633

Chambers v. Maroney, 399 U.S. 42, 50 (1970) ca eons ie

Chandler v. Miller, 520 U.S. 305 (1997) ....--++++>: 6, 14

Delaware v. Prouse, 440 U.S. 648 ‘iic) Bee 18

Ferguson v. City of Charleston, 186 F.3d 469

(4th Cir. 1999) .....----- ee: OPE ee OE EET oe Oe passim

Griffin v. Wisconsin, 483 U.S. 868, 870 (1987) ....---- 6,7

Jaffe v. Redmond, 518 U.S. 1, 12 (1997) ....----++> 2 ae

Michigan Dep't of State Police v. Sitz,

496 U.S. 444 (1990) .. 0.2. cece reer eer eeereee 6,7, 18

National Treas. Employees Union v.

Von Raab, 489 U.S. 656 (1989) ..----- +e sere ree 5, 6, 18

New York v. Burger, 482 U.S. 691, 703-704 (1987) .....-- 5

iis

Olmstead v, United States, 277 U.S. 438, 485 (1928) .. 3,20

Polk v. Dodson County Pub. Def. Office,

gi Re | eet a rer een erage way 11

Skinner v. Railway Labor Execs. Ass’n,

OP Ae Cie oi RS 5, 14, 19

State v. Luster, 419 S.E.2d 32, (Ga. 1992) ............. 18

Trammel v. United States, 445 U.S. 40, 51 (1980) ....... 1]

Vernonia Sch Dist. 47J v. Acton, 515 U.S. 646 (1995) .... 5

Whitner v South Carolina, 492 S.E. 2d 777 (S.C. 1997).... 8

Wilson v. Layne, 526 U.S. 603 (1999) .............2-- 12

ther riti

American Academy of Pediatrics, Comm. on

Substance Abuse, Drug- Exposed Infants,

a a ie Es ie ek oe eS 17

American College of Obstetricians

and Gynecologists Committee Opinion 55 (Oct. 1987) ... 15

American Med Ass’n Code of Ethics. ................ 11

American Medical Ass’n, Legal Intervention During

Pregnancy, 264 JAMA 2663, 2667 (1990). ............ 15

American Nurses Ass’ri, Position Statement (Apr. 5, 1992) . 17

American Psychological Ass’n Rules. ..--- +++ +ss 0005 11

-American Soc’y of Addiction Med.,

Public Policy Statement on Chemically

Dependent Women and Pregnancy (Sept. 25, 1989) .....- 15

D. J. Birnbach et al., Cocaine Screening of

Parturients Without Prenatal Care:

Vv t

An Evaluation of a Rapid Screening.

Assay, 84 Anesthesia Analg. 76 (1997) .....--5++++05: 15

J. Held, et al., The Effect of Prenatal Cocaine Exposure

on Neurobehavioral Outcomes: a Meta-Analysis,

21 Neurotoxicology & Teratology 619 th) BO 17

H. Hurt et al., Children with In Utero Cocaine

+ Di .

on Intelligence Testing, 151 Arch. Pediatric

& Adolescent Med. 1237 (1997) .....5- ee esse er eeee 20

S.R. Kandall, Substance and Shadow: Women.

and Addiction in the United States 278-79 (1996) ....... 15

M. Lipkin, Jr., et al. eds The Medical Interview

Me ee vebiheunes 12

J.H. Lowinson et al al. eds, Substance Abuse:

Mayes, et al., The Pr P |

Exposure: A Rush to Judgment, t. 267 JAMA 406 (1992). .. 19

-ivV-

D. Miller & M. Thalen, Knowledge &

Belief Al Confidentiality in Paychot!

17 Prof. Psychol. Res. & Prac. 15 (1986). ............. 13

D.R. Neuspiel, Cocaine and the Fetus:

-_Mythology of Severe Risk, 15 Neurotoxicology

See rere pee ree 19

A. Racine et al, The Associationn Between

ee eee. E per on

New York City, 270 JAMA 1581 (1993)............00. 16

Southern Regional Project on Infant Mortality

A Step Toward Recovery:

vi ent

for Pregnant and Parenting Women(1993) .............. I

United States Government Accounting Office,

:W *s Set Asi

Not Assure Drug Treatment for Pregnant Women (1991) . 15

6c ”

ine e

in Pregnancy, 77 British J. Anaesthesiology 553 (1996)... 15

STATEMENT OF INTEREST’

As the Petition for Certiorari filed by Crystal M. Ferguson,

et al. makes plain, the Court of Appeals decided this case in a

manner that cannot be reconciled with this Court’s teaching

concerning the narrow scope of the “special needs” exception to

ordinary Fourth Amendment requirements. Amici respectfully

submit this Brief to highlight the full importance of the issue

wrongly decided by the Fourth Circuit panel majority. See Sup.

Ct. R. 10.

Amici include physicians, nurses, counselors, public health

practitioners and their professional associations. They have both

recognized expertise and longstanding concern in the areas of

maternal and neonatal health and in the understanding and

reduction of the harms that drugs and other substances can cause

users, their families and society as a whole. This Brief is offered

to cast light upon basic medical misunderstandings that marred

both the prosecutorial policy at issue and Fourth Circuit’s

decision and to alert this Court to the real. harms that the

decision, if left undisturbed, will continue to cause.

SUMMARY OF ARGUMENT

Under any circumstance, the potential significance of the

Court of Appeals legal ruling would be large. If, as that Court

held, the interest of law enforcement officers in deterring conduct

_ already prohibited by the criminal code could count as a “special

need” for Fourth Amendment purposes (at least when pursued

without “vindictiveness”), there would be few cases left for

which the constitutional rule, that searches conducted without

warrants and probable cause are unreasonable per se, and not the

narrow special needs exception, would control.

But the specific governmental policy at issue here --

*No entity or counsel apart from those whose names appear on this

Brief have contributed monetarily or substantively to its production. Sup.

Ct. R. 37.6.

drawing on the trust inherent in the doctor-patient relationship to

obtain bodily fluids for use as incriminating evidence -- is

especially offensive to the Fourth Amendment’s core personal

privacy concerns. Although the Court of Appeals decision

characterized the invasion of privacy implicated here as

“minimal,” on the ground that “giving . . . 4 urine sample is a

normal, routine, and expected part of a medical examination,”

see Ferguson v. City of Charleston, 186 F.3d 469, 479 (4® Cir.

1999), that conclusion ignores the reason why such intimate

examinations have become “routine”: individuals willingly

undergo medically necessary, albeit personally intrusive

procedures because protecting patient confidentiality is a

fundamental part of the daily practices of the physicians, nurses,

and counselors to whom they entrust their care. Indeed, the

Medical University of South Carolina (“MUSC”), like all

hospitals in which the members of Amici organizations practice,

expressly informs patients that, absent their authorization, the

sum and substance of their medical treatment will not be

disclosed to third parties except to advance patient care.

The rules requiring respect for patient privacy ultimately

rest on principle, but they reflect, as well, a critical public health

reality. Decades of research and clinical experience teach that

patients who do not believe that their privacy will be respected ~

let alone those who fear that health professionals will perform

tests in the service of police and prosecutors -- either will not

candidly discuss their health conditions with those care providers

or will avoid seeking help altogether. These problems are

exacerbated where would-be patients have substance abuse

providers to maintain the confidentiality of the therapeutic

relationship, they tend to avoid prenatal care or refrain from full

Base ee i re

disclosure to care-providers thereby increasing the health risk to

their offspring.

Finally, although Amici have no interest in either

minimizing the health dangers posed by in utero exposure to any

drugs, licit or illicit, or in having this Court opine as-yet

unresolved scientific questions relating to the relative risks posed

by of different substances, it is important to note the lack of

scientific support for the assumption that animated the policy and

its defense (and perhaps the Fourth Circuit’s finding of “special

need,” as well): that the dangers of maternal cocaine use are

different in kind from other behaviors that raise risks to children.

Without denying the clear advisability of protecting infants from

exposure to cocaine, medical research is increasingly finding that

the sense of impending “crack baby” crisis that impelled the

prosecutors, doctors, and nurses here to discard ethical and legal

responsibilities relating to patient privacy were without solid

foundation.

Indeed, the facts of this case aptly illustrate the perils of

allowing the “special needs” exception to operate as a license for

relaxing the strictures of the Fourth Amendment in situations

where the governmental purposes are perceived to be especially

worthwhile or benevolent. Unlike in instances where compliance

with the presumptive requirements of the Fourth Amendment is

in tension with the practical exigencies of law enforcement, see,

e.g., Chambers v. Maroney, 399 U.S. 42, 50 (1970), or situations

where the full array of rules developed to curb arbitrary and

overzealous law enforcement efforts seem less necessary, see,

e.g, Camara v. Municipal Court, 387 U.S. 523, 537 (1967), the

mere fact that government actors are particularly certain of the

rightness of their ends cannot constitute a “special need”

occasioning a more deferential constitutional standard. To the

contrary, it is precisely in such situations that governmental

officials are most likely to ignore privacy interests, to act

arbitrarily, and to ignore objective facts. See generally Olmstead

3

v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J.,

dissenting) (“Experience should teach us to be most on our guard

to protect liberty when the Government's purposes are

beneficent. Men born to freedom are naturally alert to repel

invasion of their liberty by evil minded rulers. The greatest

dangers to liberty lurk in insidious encrcachment by men of zeal,

well meaning but without understanding").

ARGUMENT

The significance of the Fourth Circuit’s decision in this case

has two aspects. First, the panel majority addressed an important

question of Fourth Amendment law -- namely, when may courts

discard the presumptively applicable regime for analyzing the

legality of searches and seizures and rely on the more flexible

“special needs” inquiry -- in a manner plainly out of step with the

pertinent precedents of this Court. See Sup. Ct. R. 10(c). The

divided panel’s decision threatens serious consequences for

search and seizure law generally. The more immediate effect of

the court’s decision, one no less broadly important, derives from

the Court of Appeals’ specific holding, that governmental

policies such as the one challenged here -- where doctors and

nurses are deputized to gather evidence for use by police and

prosecutors -- are “reasonable” as a matter of constitutional law.

I. The Appellate Panel Majority Committed a Significant

Fourth Amendment Error

As Petitioners have explained, the Fourth Circuit ruling did

not question that the urine tests administered in this case were a

“search” within the meaning of the Fourth Amendment, of the

type that generally requires a valid warrant and probable cause.

Rather, the court held that this case falls within one of the

admittedly “narrow[],” 186 F.3d at 476, categories of situations

in which those requirements have been held inapplicable, i.e, the

class of cases where the challenged search or seizure is

4

ee

occasioned by “special needs beyond those of ordinary law

enforcement.”

The panel’s ruling rests on a serious misreading of this

Court’s decisions. Although the Court may not have articulated

a “unified field theory” for determining when governmental

action can be upheld in the absence of a warrant and/or probable

cause, it has emphasized that such situations are rare, and the

instances where it has done so bear scant resemblance to the

policy challenged here. First. the Court has recognized that in

certain situations the ordinary strictures of the Fourth

Amendment would make law enforcement impracticable, see

Chambers, 399 U.S. at 50, and that in others, the intrusion on

z legitimate privacy interests or the risk of arbitrary law

enforcement is sufficiently minimal, see, e.g., New York v.

Burger, 482 U.S. 691, 703-704 (1987) (administrative

inspections of “closely regulated” businesses), or the

governmental concerns sufficiently far removed from

enforcement of the criminal law, that general rules developed to

protect against prosecutorial or police excesses need not be

rigidly adhered to, so long as the reasonableness of the particular

action can be sustained. See, e.g., National Treas. Employees

Union v. Von Raab, 489 U.S. 656, 666 (1989) (emphasizing that

the drug-testing program upheld was “not designed to serve the

ordinary needs of law enforcement” and that “results [could] not

be used in a criminal prosecution of the employee”). !

'Many of the Court’s decisions combine more than one of these

considerations. Thus, in Skinner v. Railway Labor Execs. Ass’n, 489 U.S.

602 (1989), the “special needs” decision rested both on the fact employees

were held to have diminished expectations of privacy as a result of having

chosen to work in a “closely regulated” field, 489 U.S. at 627, and the fact

that results would not be used against them in criminal proceedings. See also

Vernonia Sch Dist. 47J v. Acton, 515 U.S. 646 (1995) (noting that public

school students, by virtue of the government’s “custodial and tutelary”

(continued...)

an

Finally, the Court has generally not treated “special needs”

balancing as yielding an answer to the ultimate Fourth

Amendment “reasonableness,” but rather as a means for

“determin[ing] whether it is impractical to require a warrant or

some level of individualized suspicion in the particular context.”

Skinner, 489 U. S. at 624 (upholding search “where the privacy

interests implicated by the search are minimal, and where an

important governmental interest furthered by the intrusion would

—_ Pr es af ivi

suspicion”) (emphasis added).

The standard applied by the Court of Appeals eschews the

limitations expressed and implied by these decisions. Rather, the

panel majority purported to discern two very different lessons

from this Court’s cases: (1) that the involvement of law

enforcement agents does not necessarily mean that a warrant and

probable cause will be required, see 186 F.3d at 477 n.7 (citing

Griffin v. Wisconsin, 483 U.S. 868, 870 (1987), and Michigan

't ice v. Sitz, 496 U.S. 444 (1990)); but cf.

y. Miller, 520 U.S. 305, 314 (1997) (equating “special

needs” with “concerns other than crime detection”), and (2) that

prosecutors and police are not subject to the ordinary rules when

they are acting without a “punitive” or “vindictive” purpose, 186

F.3d at 475 n.3. Thus, because the Court below believed it

“abundantly clear that Appellees were motivated by a desire to

protect the health of children born at MUSC,” and not “a

vindictive purpose to prosecute women who used cocaine during

pregnancy,” it ruled that a “special needs” mode of analysis was

appropriate. See 186 F.3d at 479.

The two cases cited by the panel majority for the first

'(..continued)

power, could be subject to a “greater degree of supervision and control that

could not be exercised over free adults,” and that student athletes’ urine

samples “are not turned over to law enforcement authorities”).

6

proposition are far removed from the circumstances that gave rise

to this case. One of them, Griffin, dealt with probationers,

individuals duly convicted of crimes under the constitutional

standard of proof, who remain subject to ongoing criminal justice

supervision and possible imprisonment and its attendant

intrusions on privacy should they violate court-ordered terms.

And policies of the sort upheld in Sitz are even further removed

from this case. Sitz entailed 4 minor privacy invasion --

momentary detention at a roadblock -- which could be avoided

altogether by driving a different route, 496 U.S. at 452, and a

policy that left little, if any, room for arbitrariness in: its

application, see id. at 453 (noting that “uniformed police officers

stop every approaching vehicle”).

The policy here was different in every relevant respect. It

involved an intrusive search of the person. The criteria for

selecting individuals to be searched were unscientific and highly

subjective, and the demographics of those chosen for searching

bore a disturbing correlation to the apparent racial prejudices of

the policy’s chief administrator. And, unlike Sitz, where both the

existence and purpose of the contested sobriety checkpoint were

publicly known, poor women seeking obstetric care at MUSC

neither were apprised of the fact that medical tests were being

conducted in such a way as to establish “probable cause” against

them, nor were they provided any practicable alternative to

prenatal treatment at that medical facility.

Although the Fourth Circuit majority labored hard to

minimize the distance between this policy and judicially- —

recognized exceptions, it spent little effort explaining how this

case differs from the acknowledged “general rule,” i.e., those

cases where the absence of a warrant and probable cause make

a search unconstitutional “per se,” 186 F.3d at 476. If it were

true that the presence of benign motives (such as the concern for

child health proffered here) sufficed to exempt searches and

seizures from the constitutional requirements of a warrant and

7

probable cause, then all efforts to confine the “special needs”

analysis to a narrow, “carefully defined” class of situations would

be doomed. Almost all criminal statutes exist to protect innocent

third parties from harm, and, to the extent that subjective motives

are relevant, it can be hoped that concern for those parties’ well-

being -- and not “vindictiveness” toward particular individuals

prosecuted -- animates most efforts to enforce those laws.

Nor, as the Court of Appeals dissent showed, can the

involvement of law enforcement or the centrality of a law

enforcement goal be denied in this case. The policy originated

with a suggestion from a hospital employee to the prosecutor that

he “consider possible prosecution of the mothers of

drug-affected babies,” Pet. App. 69.’ The Hospital pledged to do

“anything [MUSC] needs to do to assist you” in “future criminal

actions” “prosecuting mothers who gave birth to children who

tested positive for drugs,” id. at 67. Prosecutors and police

drafted the guidelines for selecting women to be tested and for

preserving the “chain of custody” of the urine samples. Indeed,

the Fourth Circuit majority itself stated, in upholding the policy

against plaintiffs’ privacy claim under the Due Process Clause,

that “[i]t is well settled that a state has a compelling interest in

the identification of law breakers and in deterring future

misconduct. 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.” 186 F.3d at 482.

This case does not present the doubtless closer questions concerning

potential Fourth Amendment limits on State-employed doctors’ power to

require patients to submit to unwelcome tests for medical reasons. Nor does

this case challenge the constitutionality of the decision to construe South

Carolina’s criminal code in a manner that would support prosecuting

pregnant women with substance abuse problems. See generally Whitner v.

South Carolina, 492 S.E. 2d 777 (S.C. 1997), cert denied, 523 U.S. 1145

(1997).

Indeed, only one fact actually distinguishes this case from

others where ordinary Fourth Amendment principles are accepted

as controlling: that although these Petitioners were arrested and

charged, based on the evidence police obtained, most were not

prosecuted. But whether or not a trial occurs cannot determine

the applicability vel non of the “special needs” test. Being

arrested and jailed for a crime should not be easily brushed aside

under any circumstances, let alone those giving rise to this case:

Petitioners were subjected to police tactics that were degrading,

physically detrimental to them and their children, and wholly

unnecessary. Various of them were shackled to their hospital

beds or arrested shortly before or immediately after giving birth,

often while still dressed in hospital gowns and still suffering pain

and bleeding from childbirth. Moreover, Respondents have at no

point disavowed their intention to prosecute women based on the

“evidence” gathered for that purpose by MUSC treatment staff

at the behest of law enforcement. A policy whereby a prosecutor

gathers incriminating evidence against a person, arrests and jails

her, and charges her with a serious felony cannot be exempted

from the purview of ordinary Fourth Amendment rules simply

because the prosecutor “only” hoped (in his words) “to use legal

intervention .. . to change human behavior” in the direction that

he and MUSC believed desirable. 186 F.3d at 475 n.3.

The extremity of the general legal rule announced by the

Fourth Circuit might be illustrated in two further ways. First,

although the particular search in this case was a urine screen,

there is nothing in the Court of Appeals decision that would

prevent the application of the same “special needs” analysis (if

not the same outcome) to other searches conducted with the same

purpose, i.¢., to uncover evidence that could be used to arrest and

threaten prosecution of pregnant women believed to be ingesting

allegedly fetotoxic substances. Indeed, a principled reading of

the decision suggests that the test would apply. Thus, under the

Fourth Circuit test, while a police-supervised search of the

belongings -- or homes -- of obstetrics patients meeting the stated

“criteria” (e.g, only limited prenatal care or known past drug

use, see 186 F.3d at 474) might be invalidated as unreasonable,

the mere lack of probable cause or a warrant would pose no

decisive Fourth Amendment obstacle.

Nor is the court’s holding limited to cases where searches

are conducted by officials other than the police. So long as the

ultimate purpose is to protect others and not simply to punish the

guilty targets of the search prosecutors and police would seem

at liberty to conduct any (reasonable) searches and seizures

without a warrant or probable cause, and without regard to

whether those might practicably be obtained, -- even when they

do so with the specific intent of developing probable cause to

support an arrest.

Il. The Fourth Circuit’s Disregard for Important Medical

Considerations Has an Ongoing, Adverse Effect on

Public Health

Amici, public health professionals and treatment providers,

are especially concerned about the negative impact that the

Fourth Circuit’s holding, were it to stand, will have on the

quality of health care not only for pregnant women with

substance abuse problems and their children, but for all patients.

First, by affirming the constitutional reasonableness of the

extreme policy at issue here, the Court of Appeals decision

impedes the provision of appropriate health care in the affected

States generally, by corroding the basic trust and confidence that "

are essential for every doctor- or counselor-patient relationship.

Relatedly, the panel majority, in concluding that the challenged

policy “effectively”addressed health “problems associated with

maternal cocaine use” failed even to consider the policy’s

adverse effects on the readiness of pregnant women with

substance abuse problems to seek out prenatal care or do so in a

candid manner. As Amici can attest -- and a well-established

10

body of research confirms -- the policy’s effect of deterring

doctor visits carries serious health threats for the very persons

whose well-being the policy purported to advance: pregnant

women and the children whom they carry.

A. The Intrusion on Privacy Was Not Minimal

The panel majority’s assertion that the invasion of privacy

at issue here, urinalysis, can be discounted as minimal (on the

ground that this procedure is a “routine” element of medical

examination) fails to acknowledge that which enables physicians

and counselors “routinely” to perform intimate tests and elicit

potentially embarrassing and even incriminating personal

information: the informed consent of the patient, obtained with

both explicit and implicit reference to the duty of confidentiality

health care professionals owe those whom they treat. See Jaffee

y. Redmond, 518 U.S. 1, 12 (1997). This obligation to keep

patient confidences can be found in the Hippocratic Oath. It is

written into the canons of ethics of learned societies, see, e.g.,

American Med Ass’n Code of Ethics §9; American

Psychological Ass’n R. 5.02, and into the tort and professional

licensure laws of every State. It is further reflected in this

Court’s decisions construing the Federal Rules of Evidence, see,

¢.g., Jaffee, 518 U.S. at 10; Trammel v. United States, 445 U.S.

40, 51 (1980), and in numerous federal statutes, see, e.g., 42

U.S.C. § 290dd-2 (prohibiting federally assisted drug-abuse

treatment programs from divulging patient identities and

records); id. § 9501(1)(H) (codifying patients’ “right to

confidentiality” of mental health records).

Nor can the fact that a doctor or nurse is employed by the

State alter this bedrock obligation. To the contrary, a patient no

more assumes that her confidences to a government-employed

doctor will be shared with the police than does a criminal

defendant expect that her State-provided attorney will share

privileged communication with the prosecutor who is paid out of

1]

the same State funds.

Office , ASA LIS 239 (1993), of NeSSu, SIS US. ae ST DRE ule

. attorney-client privilege[], the psychotherapist-patient

privilege is rooted in the imperative need for confidence and

trust”).?

As medical and public health professionals and this Court

have long recognized, the obligation of confidentiality is not

solely a matter of principle. It is a necessary precondition of

every relationship between a patient and a physician, nurse or

substance abuse counselor. See Jaffee, 518 U.S. at 10 (“the mere

possibility of disclosure may impede development of the

confidential relationship necessary for successful treatment”).

Thus, not only does “[v]iolation of confidentiality . . . show[]

disrespect to the patient as a human being,” R. Amold, et al.,

Medical Ethics and Doctor/Patient Communication, in The

Medical Interview: Clinical Care, Education and Research 345,

365 (M. Lipkin, Jr., et al., eds., 1995); but it is widely recognized

that:

To make diagnoses and treat patients effectively, the

physician must obtain sensitive information about a patient.

A patient must be willing to tell a physician, who is often

a total stranger, about such matters as drug usage . . . and to

allow the physician to examine intimate parts of his or her

>The Appeals Court’s decision disregards, as well, the basic privacy

difference between allowing a single doctor or nurse to perform an

examination or conduct a test and having the same procedure observed or

test results known by police, prosecutors, and a multitude of others — a

privacy interest that transcends the desire of those at risk of prosecution not

to be caught. Indeed, the difference is not merely intuitive. Last Term, in

Wilson v. Layne, 526 U.S. 603 (1999), this Court affirmed that there is a

distinction, cognizable under the Fourth Amendment, between the intrusion

on privacy that occurs when a government official is present in a home

pursuant to a valid warrant and that which happens when the same officer

is accompanied by members of the press or public.

12

anatomy. The promise of confidentiality encourages

pretantr ty oliwioe oeusive SUDJECLS LO 4 PNySiCcian without -

fear that an embarrassing condition will be revealed to

unauthorized people.. . .

Id.; accord A. Lazare, a in the

ae ae in id. at 333; see also D. Miller & M. Thalen,

e nti Psycho A ry

Prof, Prychol Res. & Prac 15, 18 (1986) (“patients view

confidentiality as “an all-encompassing, superordinate mandate

for the profession of psychology”). :

Although the particular Defendants in this case may have

been able to trade on (and, misleadingly, foster) patients’ well-

founded assumption that their relationship was one of trust, that

assumption obviously cannot survive when the judicially-

approved, routine breach of confidentiality becomes common

knowledge. Indeed, the possibility of a judicially-approved

breach infects every such relationship.

B. Enlisting Care Providers in Law Enforcement

Is Inimical to The Public Health

In pronouncing the challenged policy an “effective” way of

“advanc[ing] the public interest” in tackling the “health problems

associated with maternal cocaine use,” 186 F.3d at 479, the

decision below ignored a fundamental medical and legal

distinction. Although the majority was not wrong to conclude

that urinalysis is a reasonable way to identify women for whom

some “intervention” is indicated, its decision evinces no

consideration of whether a law enforcement-driven testing

regime was necessary to “reduce health effects on children

exposed to cocaine in utero,” and, if so, whether the available

ordinary law enforcement tools were somehow inadequate.

This was a serious legal error, for as this Court has

explained, departures from the presumptively applicable Fourth

13

Amendment framework are appropriate only after it is explained

“why ordinary law enforcement methods would not suffice.” see

Chandler, 520 U.S. at 320; see also Skinner 489 U. S. at 627

(1989) (noting that an otherwise impermissible search might be

upheld when “an important governmental interest furthered by

the intrusion would be placed in jeopardy by a requirement of

individualized suspicion”).

This oversight was especially fateful in this case. As Amici

can attest and a compelling body of medical research confirms,

the effect of law enforcement intrusion on the delivery of

prenatal care is so deleterious that not only is a strictly medical

approach to maternal substance abuse more effective, but a law

enforcement-driven approach threatens to make things worse, not

better, for children exposed to cocaine in utero.

First, what has been said about patients generally

concerning the need for trust applies with particular force to

those with substance abuse problems:

It is quite clear that part of treating [a chemically dependent

person] as a patient includes embracing all of the

appropriate ethical constraints of health care delivery .. . .

Possibly at the top of the list of ethical issues that are of

very special and fundamental importance to this group of

patients is the appropriate maintenance of confidentiality.

M.J. Kreek & M. Reisinger, The Addict as_a Patient, in

Comprehensive Textbook 822, 830

And this is even more urgently the case where pregnant

women with drug problems are concerned. These women are

particularly reticent to see doctors and are especially reluctant to

give accurate information concerning the nature and extent of

their drug use -- lest such information be used to take their

children away from them. Thus, after a comprehensive three-

year study of perinatal substance abuse in southern States

14

(including South Carolina), the Southern Regional Project on

Infant Mortality (an initiative of the Southern Governors’

Association and the Southern Legislative Conference) concluded:

If pregnant women . . . feel that they will be “turned in” by

health care providers or substance abuse treatment centers,

they will avoid getting care. If women are able to discuss

their addiction with providers without fear of retribution .

. . they are more likely to enter treatment.

Southern Regional Project, A Step Toward Recovery: Improving

Access to Substance Abuse Treatment for Pregnant and

Parenting Women 21 (1993).

Numerous studies have confirmed that the intrusion of the

criminal justice system on health care practices aggravates

exponentially the already-strong reluctance to seek medical

attention and treatment. Thus, the Board of Trustees of the

American Medical Association determined that if the criminal

justice system were used to deal with drug-abusing mothers,

“[p]regnant women will be likely to avoid seeking prenatal or

other medical care for fear that their physicians’ knowledge of

substance abuse or other potentially harmful behavior could

result in a jail sentence rather than proper medical treatment,”

and the American Society of Addiction Medicine has similarly

found that “criminal prosecution of chemically dependent women

will have the overall result . . . increasing, rather than preventing,

harm to children and to society as a whole.”® And a United

“American Medical Ass’n, Legal Intervention During Pregnancy, 264

JAMA 2663, 2667 (1990).

isspang hed bre ereen Med., Bd. of Directors, Public Policy

M af mi d_ Pregnancy (Sept. 25,

States General Accounting Office study concluded that “the

threat of prosecution poses . . . [a] barrier to treatment for

pregnant women.”

The health consequences of this documented reluctance to

seek care or confide fully in health care professionals are

extremely serious for the pregnant woman and her future child.

Open communication with physicians regarding drug use is

necessary to insure optimum safety before, during and after

deliveries. See D. J. Birnbach ef al., Cocaine Screening of

. Wi ;

Parturients Without Prenatal Care: An Evaluation of a Rapid

Screening Assay, 84 Anesthesia Analg. 76 (1997) (patients using

cocaine “may have untoward responses to anesthesia”);

ized ‘ “ , 77 British

J. Anaesthesiology 553, 555 (1996).

By contrast, when substance abuse -- including cocaine use

.. is known to treatment-givers, they can focus on providing

interventions that substantially improve health outcomes for

pregnant women and for children. A trusting relationship with

health professionals makes it more likely that a pregnant patient

will seek out and complete drug treatment, and far more likely

that she will avail herself of early, comprehensive prenatal care.

See S.R. Kandall, Substance and Shadow: Women and Addiction

in the United States 278-79 (1996). Indeed, even if the pregnant

patient does not reduce or discontinue her drug use, prenatal care

has been shown to improve health outcomes. Pregnant women

who use cocaine but who have at least four prenatal care visits

have been found to face significantly reduced chances of

delivering low birth weight babies,’ and the negative health

16

effects associated with prenatal drug exposure can be mitigated

through intensive counseling and training in parenting skills.®

The accumulation of clinical evidence as to the special

barriers to — and special benefits of — full disclosure by pregnant

women with substance abuse problems has led those who have

studied this problem to conclude, with an unusual degree of

unanimity, that punitive approaches must be avoided. In fact,

Amici and every other prominent public health and medical

organization to have given the subject serious consideration have

rejected the notion of turning to the criminal justice system to

address drug use during pregnancy. See American College of

Obstetricians and Gynecologists Committee Opinion 55 (Oct.

1987) (resort to the legal system“ is almost never justified” in

treating pregnant women); American Academy of Pediatrics,

Comm. on Substance Abuse, Drug-Exposed Infants, 86

Pediatrics 639, 642 (1990) (“The public must be assured of

nonpunitive access to comprehensive care which will meet the

needs of the substance-abusing pregnant woman and her

infant.”); American Nurses Ass’n, Position Statement (Apr. 5,

1992) (“ANA . . . opposes any legislation that focuses on the

criminal punishment of the mothers of drug-exposed infants . . .

. The threat of criminal prosecution is counterproductive”’); see

also Legal Intervention During Pregnancy, 264 JAMA at 2670

(reporting AMA resolution that “[c]riminal sanctions or civil

liability for harmful behavior by the pregnant woman toward her

fetus are inappropriate”); see generally State v. Luster, 419

S.E.2d 32, 35 n.2 (Ga. 1992) (listing medical and public health

’(...continued)

1581, 1585-86 (1993).

* See, e.g., L. P. Finnegan & S. R. Kandall, Maternal and Neonatal

Effecs of Alcohol and Drugs in Substance Abuse. A Comprehensive

Textbook 513, 529 (J.H. Lowinson et al., eds., 1997).

17

organizations opposing the prosecution of women for cocaine use

during pregnancy).

The panel majority did not advert to this solid scientific and

professional consensus that police- and prosecution-based

approaches will yield more harm than good for the children

exposed to drugs in utero -- nor did it appear to even consider it

relevant to the Fourth Amendment inquiry.’ Instead, the court

cited this Court’s admonition in Sitz that a policy does not fail

the Fourth Amendment test merely because it is not the most

effective one.

But the issue here is fundamentally different from that in

Sitz. Unlike there, where claims of ineffectiveness were largely

predicated on the low percentage (in absolute terms) of drunk

drivers detected, this case relied on criteria for singling out

particular individuals, see Sitz, 496 U.S. at 454 (distinguishing

Delaware v. Prouse, 440 U.S. 648 (1979)), for a far more serious

invasion of privacy.

Although the panel majority found it obvious that only

urinalysis would enable Defendants to determine which patients

to threaten with prosecution, the “effectiveness” assessment did

not take account of the drastic consequences the policy might

have as a deterrent not to drug use, but to doctors’ visits. In

cases such as Sitz and Von Raab, the deterrent effects of testing

were mutually reinforcing: either individuals would not drink or

they would not drive; here, the problem with linking testing

disclosure and arrest and possible prosecution to medical visits

is that it subverts the policy’s professed objective -- encouraging

*Thus, the court brushed aside as wholly irrelevant evidence that the

policy was not, in many respects, designed to achieve its claimed objectives,

insisting that the only relevant question is whether urinalysis is a reliable

means of detecting the presence of cocaine.

18

pregnant women who use cocaine to seek medical assistance both

for their drug problem and for their pregnancy."®

Ill. Cocaine Addiction Among Pregnant Women Does Not

Present a “Special Need”

A recurring theme of decisions relieving governmental

actors from presumptively applicable Fourth Amendment

requirements is that the Constitution should not be construed as

preventing the government from responding “reasonably” to

exigent circumstances and crises -- a proposition evident in

certain “special needs” cases, see, e.g., Skinner, 489 U.S. 602.

In such cases, the limitation to needs “beyond those of ordinary

law enforcement” has a different connotation: that a problem is

so formidable that the Fourth Amendment restraints should not

apply. The behavior of the Defendants in this case (and, to a

lesser extent, the opinion of the Fourth Circuit majority) proceed

on the assumption that cocaine use by pregnant women presented

such a crisis, truly different in kind from those which law

enforcement (and the medical profession) usually deal. Cf. 186

F.3d at 473.

Although that understanding is consistent with

contemporaneous, sensationalized media accounts, Amici note

that it is seriously lacking in support from empirical data. See,

'©4mici would hasten to add that not drinking or not driving may

meaningfully be described as “options” for many of the individuals who test

positive at sobriety checkpoints -- for example, social drinkers exercising

poor judgment. As Defendants’ policy plainly recognized, many women

who continue to use cocaine after becoming pregnant cannot so readily

“decide” to stop. At various times relevant to this case, drug treatment

resources for pregnant women in Charleston were either entirely nonexistent

or seriously inadequate. It might also be observed that the penalties

imposed on those driving while intoxicated -- despite the potent threat to

human life -- are orders of magnitude removed from the lengthy sentences

confronting the plaintiffs in this case.

19

e.g., L. Mayes, ef al.,

Exposure: A Rush to Judgment, 267 JAMA 406 (1992) (noting

that “[flindings about neurobehavioral effects in the newborn

period have been inconsistent or contradictory”); D.R. Neuspiel,

Cocaine and the Fetus: Mythology of Severe Risk, 15

Neurotoxicology and Teratology 305 (1993); See also H. Hurt er

al., Children with In Utero Cocaine Exposure Do Not Differ

from Control Subjects on Intelligence Testing, 151 Arch.

Pediatric & Adolescent Med. 1237 (1997)."' Although Amici

have no interest in downplaying the harm that ingesting cocaine

could cause to a fetus or child -- indeed they share a professional

dedication to avoiding and reducing those dangers -- it is

important that this Court’s disposition of this matter not be

influenced by such widespread but discredited assumptions.

Rather, it has always been and remains a principal object of

judicial enforcement of the Fourth Amendment to distinguish

between those cases where otherwise unconstitutional law

enforcement tactics are truly necessary and those where the

claims of “crisis” -- even if sincerely subscribed to by “men of

zeal,” Olmstead, 277 U.S. at 485 (Brandeis, J., dissenting) --

turn out to be illusory. This policy at issue in this case falls

squarely into the latter category, and, as explained above, the

ongoing effects of the Fourth Circuit’s approval continue to

compromise the effective delivery of health care.

CONCLUSION

For the foregoing reasons, Amici Curiae respectfully

request this Honorable Court to grant the petition for certiorari.

See also J. Held, et al., The Effect of Prenatal Cocaine Exposure on

Neurobehavioral Outcomes: a Meta-Analysis, 21 Neurotoxicology &

Teratology 619, 624 (1999) (noting “general consensus among researchers

that the reproductive effects of cocaine appear to be minimal” and finding

that “the effect of prenatal exposure to cocaine on neurobehavior appears

to be only marginal and transitory”).

20

Respectfully submitted,

DAVID T. GOLDBERG *DANIEL N. ABRAHAMSON

227 Garfield Place AYELET WALDMAN

Brooklyn, New York 11215 = The Lindesmith Center

Telephone: (718) 789-5584 1095 Market St., Suite 505

San Francisco, CA 94103

Telephone: (415) 554-1900

Attorneys for Amici Curiae

*(Counsel of Record)

an?

4 -

me

APPENDIX

Amicus Curiae American Public Health Association

(“APHA”) is a national organization devoted to the promotion

and protection of personal and environmental health. Founded

in 1872, APHA is the largest public health organization in the

world, representing over 50,000 public health professionals. It

represents all disciplines and specialties in public health,

including maternal and child health and substance abuse. APHA

Strives to improve public health for everyone by proposing

solutions based on research, helping to set public health practice

standards, and working closely with national and international

health agencies.

Amicus Curiae American Society of Addiction Medicine

(“ASAM”) is devoted to increasing access to and improving the

quality of addiction treatment. ASAM members are physicians

from all medical specialties and sub-specialties. They are

engaged in private practice, serve as corporate medical directors,

and work in group practice or other clinical settings. A number

are also involved in research and medical education. Through its

clinical and scientific conferences, continuing medical education

courses, and publications, including the quarterly Journal of

Addictive Diseases, ASAM actively educates physicians,

medical and osteopathic students, and the public about addiction

disorders and diseases, as well as treatment guidelines and

practice parameters in the field of addiction medicine. ASAM

staunchly opposes policies that create obstacles to or deter

persons from receiving substance abuse treatment and

counseling.

Amicus Curiae Society of General Internal Medicine

(“SGIM”) is the professional society of academic physicians who

teach and conduct research in primary care Internal Medicine.

The Society, which has nearly 3000 members in the United

é

States (including South Carolina) and 11 other countries,

publishes the Journal of General Internal Medicine and is a

leader in research and education in the medical care of adults.

Many SGIM members have national expertise in issues related

to alcoholism and abuse of other substances. SGIM is deeply

concerned that the Ferguson decision, if let stand, could deter

women in South Carolina and elsewhere from seeking drug-

treatment and prenatal services that are essential to the delivery

of a healthy child. The failure to maintain proper patient

confidentiality (at the heart of MUSC’s policy) will not only

discourage women from seeking this vital care but may well

interfere with physicians ability to provide it when sought.

Amicus Curiae South Carolina Medical Association

(“SCMA”) is the primary professional association for individuals

licensed to practice medicine in South Carolina. The SCMA has

over 5500 members representing all medical specialties that

provide medical services to the citizens of the state. The SCMA’s

primary mission is to foster high ethical and clinical standards for

the practice of medicine in South Carolina. To this end, SCMA

opposes policies and practices that undermine patient

confidentiality and weaken the trust between health care

providers and patients that promotes positive treatment

outcomes.

Amicus Curiae National Association of Alcoholism and Drug

Abuse Counselors, Inc. (“NAADAC”) is the nation’s largest

organization of alcohol and drug counselors, with 17,000

members. NAADAC's members have special expertise in the

substance abuse treatment needs of pregnant women. NAADAC

joins this brief becaus it is deeply concerned that the decision

below, if permitted to stand, will undermine the quality of care

that South Carolina substance abuse professionals can provide

pregnant patients, and will deter pregnant women from seeking

these essential services.

ib

Amicus Curiae National Council on Alcoholism and Drug

Dependence (“NCADD”) with its nationwide network of

affiliates, provides education, information, help and hope in the

fight against the chronic diseases of alcoholism and other drug

addictions. Founded in 1944, NCADD historically has provided

confidential assessment and referral services for alcoholics and

other drug addicts seeking treatment. If NCADD affiliates were

required to provide the names and medical information of drug-

using pregnant women to law enforcement authorities, it would

greatly inhibit their ability to serve this population. In 1990, the

NCADD Board of Directors adopted a policy statement on

“Women, Alcohol, Other Drugs and Pregnancy” that

recommended that “[s]tates should avoid measures which would

define alcohol and other drug use during pregnancy as prenatal

child abuse and should avoid prosecutions, jailing or other

punitive measures which would serve to discourage women from

seeking health care services. . . .” For these reasons, NCADD

urges the Court to review the decision below.

Amicus Curiae American Nurses Association (“ANA”) is a

professional organization representing this nation’s over 2.2

million registered nurses. ANA is committed to ensuring the

availability and accessibility of health care services. It believes

that access to maternal-child health services is particularly

critical to efforts to prevent disease and to provide early

intervention for health care problems. Thus it opposes all

barriers to prenatal care. ANA is concerned that when health

care providers divulge patient information to law enforcement

officials women in need of prenatal care and/or substance abuse

treatment are deterred from seeking these essential services.

Amicus Curiae South Carolina Nurses Association

(“SCNA”), a constituent member of ANA, is a professional

organization which represents registered nurses in South

Carolina. SCNA’s legislative positions speak strongly to support

-ili-

health care for a number of vulnerable populations and

emphasize the importance of accessing prenatal health care

secure in the knowledge that the providers are wholly devoted to

treatment and are not doubling as the agents of law enforcement.

In 1991, SCNA issued a position statement opposing the criminal

prosecution of women for drug use while pregnant. SCNA

continues to believe that the breaching of patient confidentiality

and the threat of criminal prosecution serves as a real deterrent

to pregnant women who suffer from chemical dependence from

seeking and obtaining prenatal care.

Amicus Curiae Association of Reproductive Health

Professionals (“ARHP”) is a non-profit, interdisciplinary medical

association for leaders in the field of reproductive health.

Founded in 1963 and comprised of physicians, nurse

practitioners, other clinicians, pharmacists, and researchers,

ARHP serves as an important source of reproductive health

education and information for health care professionals, patients,

the media, legislators, and other professionals. ARHP is

accredited by the Accreditation Council for Continuing Medical

Education and for the past 35 years has sponsored clinical

education for physicians on reproductive health issues. ARHP

is deeply concerned that the decision threatens to undermine the

quality of care provided by physicians, nurse practitioners, and

other clinicians who treat pregnant and parenting women in

South Carolina.

Amicus Curiae American Medical Women’s Association

(“AMWA”) is a national, non-profit organization of over 10,000

women physicians and physicians-in-training representing every

medical specialty. Founded in 1915, AMWA is dedicated to

promoting women in medicine and advocating for improved

women’s health policy. AMWA strongly supports treatment and

rehabilitation of women who use alcohol and drugs during

pregnancy, and opposes the arrest, jailing and/or prosecution of

-jv-

pregnant women as a method for preventing or punishing

chemical dependency during pregnancy. AMWA encourages all

pregnant women to seek prenatal care and believes that

breaching the medical confidentiality of these women or

otherwise hindering their ability to establish a relationship of

trust with their treatment providers will deter women, especially

those that may be at high risk for adverse pregnancy outcomes,

from receiving prenatal care.

Amicus Curiae National Women’s Health Network (the

“Network”) is a national advocacy group representing 500,000

women through its individual and organizational members. The

Network’s goals include ensuring that all women have access to

appropriate prenatal, delivery and post-partum care. Toward

these goals, the Network works to eliminate cultural, economic,

educational and legal barriers to health care for women. The

Network staunchly opposes the breaching of patient

confidentiality of women by virtue of their status as pregnant

substance abusers, as well as the arrest and criminal charging and

prosecution of pregnant addicts — policies which threaten to

create yet another barrier to health care that will endanger the

health of women and their future children.

Amicus Curiae National Association of Social Workers, Inc.

(“NASW”) is the world’s largest association of professional

social workers with over 155,000 members in fifty-five chapters

throughout the United States and abroad. Founded in 1955,

NASW is devoted to promoting the quality and effectiveness of

social work practice, advancing the knowledge base of the social

work profession, and improving the quality of life through

utilization of social work knowledge and skills. The South

Carolina chapter of NASW has over 1,260 members. NASW

and its South Carolina chapter believe that the expansion of law

enforcement into the treatment context and the blurring of lines

between prenatal / obstetrical care providers and peace officers

-vV-

is inimical to family stability and counter to the best interests of

the child.

Amicus Curiae Association for Medical Education and

Research in Substance Abuse ("AMERSA") is a national

organization of three hundred health care and social services

professionals. AMERSA is committed to educating physicians,

nurses, social workers, and other health care and social services

professionals on the recognition and treatment of alcohol and

drug problems. Many of AMERSA's members are psychiatrists,

nurses, and social workers who specialize in substance abuse

treatment; others are internists, family physicians, pediatricians,

nurses, and social workers who work in general health and social

services settings identifying individuals with alcohol and drug

problems, providing counseling, and referring them as necessary

to treatment specialists; most members are professors at medical

schools, nursing schools, or social work programs. To be

effective, prenatal care and treatment for pregnant addicts must

occur in the context of a confidential, respectful, and trusting

relationship between professional and patient. AMERSA

believes that when this relationship is jeopardized net harm to the

health of mothers and children will likely occur because women

will be deterred from obtaining en care, addiction

treatment, and counseling.

Amicus Curiae Society for Medical Anthropology (“SMA”)

is a private, voluntary, not-for-profit organization of

anthropologists and other social scientists who specialize in the

anthropological study of health and healing. Current

membership exceeds 1,300 professionals who are employed in

traditional academic settings of colleges and universities, schools

of public health and medical schools, as well as in applied

research and service settings. SMA supports its members in the

goal of educating academic and lay audiences about the cultural

dimensions of health and disease in order to improve the health

-vi-

of all populations. SMA is concerned about any policy or

practice — like the one at issue here — that may prevent

individuals and groups from seeking medical care during

pregnancy. Prenatal care — which includes open and trusting

com.aunication between women and their care givers — is vital

to positive birth outcomes, especially for low-income women

whose poverty increases the risk of adverse health consequences.

Amicus Curiae California Medical Association (“CMA”) is

the primary professional association for individuals licensed to

practice medicine in California. CMA has over more than

30,000 members representing all medical specialties that provide

medical services throughout the state. CMA’s primary mission

is to foster high ethical and clinical standards for the practice of

medicine in California. CMA thus stands opposed to laws and

policies, like the policy being challenged here, that unnecessarily

hinder the effective practice of medicine or that have the effect

of depriving persons of needed medical care.

Amicus Curiae California Society of Addiction Medicine

(“CSAM”) is the California chapter of The American Society of

Addiction. CSAM’s mission is to increase access to and

improve the quality of addiction treatment through education and

research, and to reduce the stigma and prejudice commonly

associated with addiction disorders. Accordingly, CSAM

opposes the policy being challenged in this case as it has the

effect of driving pregnant women away from seeking substance —

abuse treatment and further stigmatizing chemical dependence by

entwining it with criminal justice ramifications.

Amicus Curiae Institute for Health and Recovery (“IHR”),

formerly the Coalition on Addiction, Pregnancy and Parenting,

is a non-profit organization committed to the development of a

continuum of comprehensive services for alcohol- and drug-

-vii-

dependent women and their families throughout Massachusetts.

IHR is committed to establishing collaborative models of service

delivery and fostering family-centered services. IHR firmly

believes that addiction is an illness requiring treatment, not a

condition warranting arrest and possible prosecution and

punishment. IHR members know firsthand the fears that

pregnant substance abusing women have regarding arrest and

loss of child custody, causing them to be reluctant to seek

prenatal care and substance abuse treatment. Accordingly, IHR

opposes the policy enacted by MUSC and challenged here.

Amicus Curiae Consortium for Substance Abusing Women

and their Children (“The Consortium”) is comprised of more

than 60 agencies in the state of Connecticut dedicated to

improving the health of and services available to substance

abusing and mentally ill women and their children. The

Consortium serves as the principal resource in Connecticut for

the development and implementation of policy, advocacy, and

technical assistance to promote the behavioral health of women

and their children, the integration and coordination of services

for women and their children, and access to and retention in

treatment. Established in 1990 in response to data showing that

New Haven led the nation in infant mortality rates, The

Consortium oversees the development of client-based models of

care for addicted and mentally ill women and their children. The

Consortium opposes MUSC’s policy being challenged in this

case as improper and counterproductive measures for promoting

maternal and child health.

Amicus Curiae Robert G. Newman, M.D., is President and

Chief Executive Officer of Continuum Health Partners, Inc.,

comprising four hospitals with a total of 3,100 beds, and with the

largest chemical dependency treatment services of any health

care system in the United States. He is Professor of

Epidemiology and Social Medicine and Professor of Psychiatry

-Vili-

at the Albert Einstein College of Medicine, and a member of the

Board of Commissioners of the Joint Commission of

Accreditation of Health Care Organizations. Dr. Newman has

played a major role in the development of addiction treatment in

the U.S., Australia, Asia and Europe.