In the wake of the Supreme Court’s ruling that overturned the right to an abortion, reproductive health advocates say they are worried policymakers and law enforcement will take more steps to criminalize pregnancy outcomes — arresting women for miscarriages and suspected attempts to abort their pregnancies. This phenomenon isn’t new, advocates say.
“Even with Roe on the books, there has been a prosecution of pregnancy outcomes,” said Emma Roth, an attorney with the National Advocates for Pregnant Women.
From Texas to California, women have faced murder charges for stillbirths and “self-induced abortion.” NAPW has tracked more than 1,700 cases between 1973 and 2020 in which being pregnant contributed to an arrest or detention, and some legal experts warn this could become more frequent in a post-Roe world. In many of these cases, Roth said, a medical provider called the police.
One overlooked and common example of this phenomenon, experts say: medical providers drug-testing pregnant patients without their consent.
Drug screening for pregnant patients takes several forms: The American College of Obstetrics and Gynecology recommends universal screening by surveying patients about potential risk factors. After that, a urine drug test is recommended if the screening points to possible substance abuse. Research has suggested that urine screening, generally, could have some value in early pregnancy, which could give medical providers time to intervene in any substance abuse issues before they affect the fetus.
But many medical experts say drug screening pregnant patients has been fraught in practice. While urine tests are taken routinely during pregnancy to monitor for conditions like diabetes, dehydration or preeclampsia, women may not know that they can also be used to screen for drugs.
Some legal and medical experts say the practice is common. One recent study, which analyzed data from five Massachusetts hospitals over a four-year period, found that verbal consent was documented in less than a third of maternal toxicology tests.
It’s “impossible” to give specific numbers of how frequently nonconsensual drug screening happens, because these hospital policies are not publicly available, Roth said. Only a small minority of hospitals have publicly stated that they will cease the practice.
Mishka Terplan, a medical director and senior research scientist at the Friends Research Institute, which specializes in the treatment of mental illness and addiction, noted that urine tests in particular are prone to false positives. And while they can identify drug metabolites in the body, they cannot differentiate between occasional and chronic use.
Testing a patient against their knowledge can undermine trust between them and their provider, Terplan said — particularly if the provider reaches out to law enforcement or social services based on these results (this is a large part of why major medical associations recommend against nonconsensual drug testing).
Given the potential harm of opening an investigation, which could lead to separating the child from their parents, Terplan said, “it would be ethical to disclose to people not only that you’re going to do a drug test, but how the information is shared, such that can have a right of refusal.”
Some hospitals say this urine screening is done to help make sure the fetus isn’t exposed to drugs in utero, and that reporting positive results to state authorities is a matter of state and federal policy, which require them to act on possible child abuse or neglect. (Protected health information can be released to state authorities if child abuse is suspected.)
In several high-profile cases, women who said they had ingested poppy seeds faced investigations after testing positive on urine tests allegedly taken without their knowledge. Several studies have shown that eating poppy seeds, which sometimes contain traces of morphine, can lead to failed drug tests.
The Washington Post spoke to two women, one in Illinois and one in New York City, who allege that they were drug-tested without their consent — tests that rendered false positives for both. And they are are fighting back: Both have filed complaints with state agencies against their respective hospitals. In their complaints, the women said they were reported to child welfare agencies without being granted a second, confirmatory test, and that investigations were opened based solely off the hospital’s reporting.
These investigations had far-reaching impacts, despite the fact that, in some ways, the women experienced the best-case scenario: Social services ultimately found no wrongdoing or abuse on the mothers’ part. The Illinois lawsuit is being brought forward by the National Advocates for Pregnant Women and the ACLU of Illinois, and the New York Civil Liberties Union is representing the client in New York.
It wasn’t what Crystal expected her maternity leave to look like: sprawled out on the large brown couch in her living room, surrounded by papers, her face glowing in the light of an ever-expanding Google doc. While her husband paced the apartment with their newborn son, she rang up law offices, trying to find an attorney who could take her case, she said. (Crystal is being identified by her first name out of concern of being stigmatized.)
Friends had told Crystal, 34, that she could expect to be “treated like gold” by hospital workers when she gave birth to her child — her first. After getting pregnant in the beginning of pandemic and experiencing a few pregnancy complications, including gestational diabetes, Crystal looked forward to being embraced by people there to support her and her baby.
What she alleges unfolded, however, was a “nightmare.”
A week before Christmas 2020, Crystal was admitted to Garnet Health Medical Center in Orange County, N.Y., after her water broke. Before going to the hospital, Crystal had eaten what was a heavier breakfast than usual: a bagel sandwich. At the hospital, she took a urine test, just as she had in the months before.
According to Crystal’s complaint, it wasn’t until a nurse delivered the results of the urine test that Crystal learned she had been tested for drugs: In fact, she had tested positive for opiates.
Crystal was shocked. She hadn’t ingested any drugs or controlled substances at any point in her pregnancy, she said. Then it hit her: The sandwich she had for breakfast was on an “everything” bagel, which is encrusted with sesame seeds, garlic, salt, dried onion — and poppy seeds. Crystal had seen reports of poppy seeds triggering false positives before. Was that what happened to her?
Crystal alleges that she immediately asked if she could retest but wasn’t given the opportunity to do so until after she gave birth — and after hospital staff had reported her to the New York Statewide Central Register, which investigates child abuse allegations.
The day after her son was born, Crystal learned that hospital staff had tested him for drugs, too, she said. That test was negative. By that point, the White nursing staff was treating Crystal, who is Latina, in an “accusatory and dismissive” way, her complaint alleges.
New York Gov. Kathy Hochul’s office told The Post: “A parent’s positive drug test, with no other factors present, would not in and of itself provide reasonable cause to substantiate a report of abuse or maltreatment.”
Garnet Health Medical Center, which is facing another complaint alleging hospital staff wrongly reported a false-positive test to state authorities, argued in a written rebuttal to the allegations that it was “medically appropriate” and “justified” in its screening of pregnant patients.
“The hospital’s practice of drug screening obstetrics patients and reporting such results to the State Central Register was part of the hospital’s efforts to protect both mother and baby and comply with its obligations as a ‘mandatory reporter,’” attorneys for the hospital wrote in their rebuttal, which was shared with The Post.
“GHMC does not concede that its staff treated [Crystal] improperly,” they added.
Within 12 hours of being discharged from Garnet, Crystal said, a caseworker showed up at her home.
A full investigation would take 60 days, she was told. And even if they found child abuse and maltreatment “unfounded,” the casefile would remain on her record for 10 years, accessible only to a select group of people, including child welfare workers and law enforcement.
Crystal felt forced into a fight she had never anticipated. And it consumed her, she said. She spent so much of her pregnancy, so much of her life, being “meticulous” — a habitual rule-follower. How could this have happened to her?
For much of the first year of her son’s life, she broke down at least once a day, Crystal said. But she remained dogged: becoming so preoccupied with fighting back — against the hospital, the state — that she lost time to bond with her child, she said.
“I was literally consumed by this,” Crystal said. “This can’t happen. This isn’t okay.”
After nine months of self-advocacy, Crystal was able to get her record expunged. But she’s still waiting for her complaint against Garnet to advance. Crystal is seeking an apology and damages from the hospital, that her false-positive be scrubbed from her medical records, and that Garnet cease drug testing obstetrics patients without their consent.
Garnet, in its rebuttal, said it updated its policy via a “practice alert” to its nursing staff, “which altered the practice of screening for drug use.”
For Crystal, the pain of the investigation lingers. There’s also the new distrust in authority. She was raised to put faith in medical providers. That’s changed, she said: “I feel now as though when I walk into a doctor’s office, that I have to have this armor on.”
‘Isolated and ashamed’
What Maggie couldn’t shake was the isolation.
A first-time mother at 44, Maggie and her husband had to hire a stranger to live with them — not to help with the newborn, but to keep an eye on the new parents. The state of Illinois’s Department of Children and Family Services (DCFS) had mandated it, according to a complaint Maggie filed late last year. DCFS did not respond to requests for comment for this story.
Before delivering her baby prematurely, Maggie, a nanny, had tested positive for opiates, despite not taking any drugs, she said. (Maggie is being identified by her nickname out of concern of being stigmatized.)
Maggie had eaten a poppy seed cake — a tradition in her native Poland — on Easter weekend, hours before her water broke, she said. Maggie alleges in her complaint that her hospital, St. Alexius Medical Center, reported the results to DCFS, despite her pleas to take a follow-up drug test to prove the first one was wrong.
In a statement to The Post, Ascension, a network of medical centers that includes St. Alexius, wrote: “While we cannot comment on pending litigation, the hospital takes very seriously its responsibility to provide the best care for its patients’ physical, emotional, mental and spiritual well-being.”
Part of the safety plan created by DCFS required a third party to supervise Maggie and her child at all times, according to her complaint. Maggie’s husband needed to return to work, and neither of their families were able to move in with them. So, for two weeks, Maggie paid someone she didn’t know — a friend of her in-laws — to come into her home and supervise her and the baby around-the-clock.
Then there was the pain.
Maggie said she opted to stop taking the pain medication her doctor prescribed to help her recover from her C-section. The pills contained an opioid, and Maggie feared what would happen if her baby drank her breastmilk (her complaint alleges that hospital staff screened her newborn for drugs, and that the results were negative). Even though abdominal pain from a C-section can last for one to two weeks, Maggie said she stopped taking the pills after a couple days.
Her first few months of motherhood were marked with regular visits from a DCFS agent — inspections that felt like intrusions, she said. There were also regular urine tests both she and her husband had to take at a local clinic. After a three-month investigation, DCFS sent Maggie a letter saying it found no credible evidence of child abuse. Still, for Maggie, there was only limited relief — the case file of her investigation would remain for five years.
More than a year after giving birth, Maggie doesn’t feel free of the ordeal. Roth, of the National Advocates for Pregnant Women, who is representing Maggie, said her client feels as though she’s “on probation.”
As a nanny, Maggie worries about what that casefile could mean for her future: If employers find out, would they fire or refuse to hire her, even though she had done nothing wrong?
Maggie said she didn’t talk to anyone about what has happening, even her closest friends: “I was afraid they were going to judge us.” But Maggie didn’t think of fighting back — not when she was at the hospital and not during the months-long investigation. She was worried if she didn’t comply, her baby would be taken away.
“All the time, I was ashamed,” Maggie said. The only thing that eased her sense of isolation was hearing about other moms who went through the same experience she had — stories she stumbled across on social media. Maggie also learned that, through the courts, she might be able to hold the hospital accountable, which prompted her to get in touch with NAPW.
Maggie still has difficulty reliving that time in her life. Talking to The Post nearly a year later, Maggie said she still cries every time she talks about what happened. Now 46, she and her husband are trying to have a second child, though their experience had her reconsidering whether she wanted to get pregnant again.
Whatever happens, Maggie knows she will not return to St. Alexius.
“The joy was taken away,” she said.