Good intentions, bad law

The U.S. Supreme Court missed one opportunity in its current session to undo a faulty legal precedent, but it still has the chance to fix another.

Editorial. Nov. 6, 2000.

Two cases with significance to medicine should have been heard in the current session of the U.S. Supreme Court. Only one made the cut, but both are examples of the troubling legal precedents that can result when the worlds of law and medicine intersect.

The case that the court agreed to rule on is Ferguson v. Charleston, S.C. In 1989, doctors and nurses at the Medical University of South Carolina, Charleston, were alarmed by the risk posed to fetuses by their mothers' use of potent, plentiful and highly addictive crack cocaine. Their response, when they suspected cocaine use, was to test those women for the drug and to turn the results over to police so that the mother could be arrested (in later years the mothers could opt for drug treatment instead of arrest). Ten of the women arrested filed suit, claiming that their rights had been violated, including their right to privacy and their Fourth Amendment protections against illegal search and seizure.

Central to the case is that the evidence used against the mothers was collected by their doctors and nurses without a search warrant. An appeals court found that approach acceptable on the grounds that its effectiveness in promoting the public health benefit, in this case the well-being of fetus and mother, outweighed the Fourth Amendment protections.

The AMA filed a friend-of-the-court brief in this case -- pointedly on behalf of neither side, but to inform the court on the medical issues -- that disagreed with the lower court's finding. Studies have shown that criminalizing drug addiction is not an effective approach to curbing substance abuse by pregnant women.

Moreover, the damage to the patient-physician relationship that is inherent in any such program would, in all likelihood, compel women to either skip pre- and postnatal treatment or lie about drug use to the doctor -- any and all potentially damaging to mother and child.

The hospital stopped the practice in 1993, but the Supreme Court could allow the precedent to endure. Instead, the court should recognize the situation for what it is: a well-intentioned fiasco that should not be repeated.

The case the court declined to hear is Dicter v. United States of America, also the subject of an AMA and organized medicine friend-of-the-court brief. Drugs were also a factor in this case, but in this instance it was a doctor -- Richard M. Dicter, MD, of Atlanta -- who was convicted of 230 counts of unlawfully distributing controlled substances, specifically prescription pain killers.

It was something extra that the jury did at the behest of prosecutors that makes the case unique and troubling. The jury -- albeit reluctantly, as evidenced by a note jurors sent to the judge -- found that Dr. Dicter's medical license could be seized by the federal government as property under federal drug law confiscation provisions. That ruling, upheld on appeal, is believed to be the first instance of its kind.

Such an action is a blow to the sound and long-standing system of medical licenses being the responsibility of state medical boards. Supreme Court review of this case would have been appropriate because that power stems from the 10th Amendment to the Constitution. It is easy to imagine that, over time, prosecutors or lawmakers will attempt to broaden the circumstances in which the federal government can go after a doctor's medical license.

It is also unfortunate that the high court refused to hear this case because it conflicts with what other federal courts have held about state-issued licenses. For example, in California, a federal appeals court found that the federal government could not even seize a state-issued driver's license. Yet in Georgia, a state-issued medical license may be fair game for federal prosecutors.

No one wants to see babies born with cocaine in their systems. It is a travesty when a physician abuses the profession's public trust by illegally prescribing drugs. But the remedies that have come out of these situations are unnecessary and have the potential to create their own damage. The Supreme Court missed an opportunity in Dicter to set one of these unfortunate situations right; at least it still has the power to do so in Ferguson.