Review Set On Syphilis Test Order Chester Bail Rule Under Scrutiny

Posted: April 21, 1989

The state Department of Health backtracked yesterday on its new program requiring defendants in Chester drug cases to undergo syphilis tests, promising an alternative plan that "might not be so counterproductive."

Department spokesman Robert Fisher said his agency asked Delaware County President Judge Francis J. Catania to require the testing of drug defendants in Chester because there has been a serious outbreak of syphilis in the city.

Under the program - implemented last week - defendants in drug cases are told during their preliminary arraignment that they will be denied bail unless they present a receipt showing they have undergone a blood analysis for syphilis.

The infectious venereal disease is not spread by sharing needles or other incidents of using drugs, health officials have acknowledged. They said the department decided to focus on drug arrests because syphilis is rampant in the

drug-using community.

Fisher said that because of the controversy that had been sparked by the program, Health Department representatives scheduled an emergency meeting for today with officials in Delaware County to develop an alternative program.

"There might be other ways that might not be so counterproductive," Fisher said. "There are some better ways to approach it than what we suggested." He declined to elaborate on what alternatives were being considered.

Barry Steinhardt, executive director of the American Civil Liberties Union of Pennsylvania, and Delaware County Legal Assistance Director Anne Torregrossa said yesterday that they were considering court action to stop the program because it violated the constitutional right of defendants to receive bail.

Torregrossa said she had been in contact with Health Department attorneys to negotiate an end to the program without a court battle.

Fisher said Health Secretary N. Mark Richards first learned of the Chester testing program from news accounts yesterday and was told by Department of Health legal staff that "there may be some question about the legal basis to do it."

Fisher, who early yesterday had stated that Richards was aware of the testing program "from the beginning," said the department's legal staff had been unaware of the program until news reports yesterday.

"We think there may be some better way to work on the problem of detection," said Fisher.

Richards and Catania did not respond to requests for interviews.

Robert Hagarty, the state public health adviser in Chester who helped design the testing program for defendants, said the only legal advice he had received on the plan was from Chester District Justice William L. Brown Jr.

Hagarty acknowledged that Brown "was concerned" that the plan violated the defendants' basic rights, but Hagarty decided to go ahead with the program. Brown could not be reached for comment.

"It did occur to us" that constitutional issues might arise, Hagarty said, "but the benefits would outweigh the costs."

Edward Powers, director of the Department of Health's Division of Sexually Transmittable Diseases, said his office was involved at all stages of the planning for the testing program but did not focus on the potential legal problems.

"We're not here to raise the question of constitutionality," he said.

Powers noted that state law gives the Department of Health the authority to test people arrested on prostitution and violations involving "lewd conduct," but he conceded that the law did not apply to drug offenses.

Steinhardt said he was concerned that the program could be viewed as racially motivated, noting that Chester - the only city in Pennsylvania in which the program has been instituted - is largely black.

Powers rejected Steinhardt's contention, stating that "drug use is the key to it rather than being black."

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