- Three women told Newsweek of how, while they were pregnant, they were drug tested at hospital without their consent.
- The tests resulted in intrusive child services investigations into claims of abuse or neglect that were proved unfounded.
- The traumatic experiences ruined the joy of birth for these women, who are suing their health care providers.
While pregnant with her first child, Kate craved “everything” bagels.
As the name implies, these bagels are topped with an assortment of ingredients, usually including salt, garlic, sesame seeds and poppy seeds.
On the morning of September 20 last year, Kate bought an “everything” bagel and ate it on the way to an appointment at her doctor’s office.
That innocuous decision led to her testing positive for opiates at the hospital where she gave birth, followed by an invasive investigation by child protective services that has left her with lasting trauma.
The experience shattered her trust in medical professionals and she now lives in constant fear that she could be reported to the authorities, Kate, 33, who asked to only be identified by her first name, told Newsweek in a phone interview.
“I am now always worried at any doctor’s appointments for myself or for my child, that doctors won’t tell me the truth. I don’t want to live my life like that but that was what the hospital did to me,” she said.
“It’s completely ruined any trust I would ever have with any medical professional… the joy of bringing home my daughter was completely taken away from me.”
Kate is one of a number of women who have told Newsweek they have been secretly drug tested while pregnant without their consent and reported for possible child abuse or neglect. The cases raise serious concerns about discrimination and the violation of patients’ rights. There are also fears secret drug testing may deter pregnant women from seeking medical treatment.
How False Positive Led to an Traumatic Investigation
On the day of her doctor’s appointment, Kate had provided a urine sample that indicated she had elevated proteins. Her doctor was concerned that she had preeclampsia—a blood pressure disorder that can cause stroke, organ damage and preterm birth—and suggested she go to the hospital right away.
She headed to Hackensack University Medical Center in New Jersey later that day, where a nurse asked Kate to provide a urine sample, which she assumed was also to check her protein levels.
But the hospital performed a drug test on the sample without Kate’s knowledge or consent, according to a complaint filed with the New Jersey Division on Civil Rights on Kate’s behalf by the American Civil Liberties Union of New Jersey.
The poppy seeds on Kate’s bagel led to the test coming back positive for opiates, the complaint said.
But despite acknowledging it could be a false positive, the hospital reported Kate to the New Jersey Division of Child Protection and Permanency (DCPP) for possible abuse or neglect. Newsweek has contacted the hospital and DCPP for comment via email multiple times.
Kate was unaware of the test result as she went into labor that night. She still didn’t know when her daughter was born the following afternoon after an emergency cesarean section and swiftly transported to the neonatal intensive care unit.
Kate and her husband had learned early in her pregnancy that their baby would be born with a condition that required her to receive specialized care, according to the complaint.
They arranged for their baby to have surgery soon after birth, and were told by surgeons that it was not necessary for babies born with the condition to be placed in the intensive care unit.
However, her daughter remained in the unit even after she was taken out of an incubator and placed in a regular crib days following birth. It was not until the evening of September 24 when Kate asked if she would be able to take her daughter home the following morning that she was told that her urine sample had tested positive for opiates.
“Four full days that I was in the hospital, and no one told me,” Kate told Newsweek. “They all knew about this test result, and no one told me. I felt like they were all just like laughing behind my back about it and they were drug testing my baby without my knowledge, not even telling me those results.”
After representatives with DCPP conducted separate interviews with Kate and her husband, she was discharged—but her baby remained in the hospital, missing the appointment with the specialist surgeons they had scheduled.
Case workers visited Kate’s home for an inspection on September 26, and the complaint alleges it was Kate who informed them that a new test conducted the day prior came back negative for all substances.
Despite being cleared by DCPP to take their baby home, Kate was not able to do so until October 1, 10 days after she gave birth.
But the couple’s ordeal did not end there: Kate and her husband continued to be subject to an investigation by DCPP over the next two months.
According to the complaint, she was required to complete a Certified Alcohol and Drug Counseling evaluation. During that assessment, she was forced to endure the humiliating experience of providing a urine sample in full view of a case worker. (That test also was negative for all substances.) Kate said the case worker told her during that assessment that she may have been targeted for a drug test because of her tattoos.
In November, she received a letter stating the allegation of neglect was “unfounded.” Although the investigation was over, the letter stated that the agency would retain the family’s file for at least three years.
“Every new parent has paranoia, but mine is specifically that someone will be judging me, thinking I’m not doing something correct, and reporting me to the authorities,” she said.
“That’s my constant fear all the time now. Especially with all the doctor’s appointments we have and going to hospital, it’s always on the back of my mind.”
Discrimination Based on Sex and Pregnancy
Kate is not alone in her experience—Newsweek has spoken with two other mothers who said they were also drug tested without their knowledge or consent, and reported for possible child abuse and neglect after the results came back positive.
In a case strikingly similar to Kate’s, another woman—Kaitlin K.—said she was tested after arriving at Virtua Voorhees Hospital in New Jersey to have her second child delivered on October 20 last year.
Her test was positive for opiates after she ate a bagel with poppy seeds that morning, according to the complaint also filed by the ACLU of New Jersey. Kate and Kaitlin’s complaints allege that the practice of drug testing pregnant patients violates New Jersey’s Law Against Discrimination on the basis of sex and pregnancy.
In Kaitlin’s case, she was not told about her positive result until the day after she gave birth, the complaint said.
Then, on the morning of October 22, she was told that while her baby’s tests had come back negative, a second test on her urine had tested positive for codeine. The complaint noted that the laboratory testing the sample employed a cutoff of 10 ng/ml to determine if a sample was positive for codeine, a threshold far lower than that recommended in federal guidelines.
Kaitlin’s urine sample also sat in a shared bathroom before it was retrieved by a nurse, and she is sure that it was swapped with another.
“It is our customary approach not to comment on pending litigation,” Daniel Moise, director of communications for Virtua Health, which operates the hospital, told Newsweek in an email. “As a health system dedicated to providing safe, comprehensive, and equitable care to the community, we are fully committed to reviewing this matter.”
Like Kate, Kaitlin was subject to an investigation by DCPP after the hospital reported the positive test result. In December, she was informed that the allegation of abuse was “unfounded.”
“Bringing your new baby home from the hospital is supposed to be filled with happiness and joy. That’s how it was with my first son,” Kaitlin told Newsweek.
“The hospital stole that from me this time. They took that beautiful moment from me, and I’ll never get it back.”
She remains haunted, she said, knowing that DCPP will hold onto her records for at least three years. “The thought of this situation somehow being used against me keeps me up at night,” she said.
Kate and Kaitlin are not the only ones who have been falsely identified as drug users through urine testing—other women with similar experiences have sued in Pennsylvania and Illinois in recent years.
And in New York, a woman is suing a hospital for secretly drug testing her during labor.
That woman, who asked to be identified only as Terisa, said nurses kept asking her if she needed to use the bathroom when she arrived to give birth at Brookdale Hospital Medical Center, a private nonprofit hospital in Brooklyn, on July 25, 2021. “I kept telling them that I didn’t have to use the restroom, but I wanted my epidural because this was my fourth child,” the 32-year-old told Newsweek.
Although she never used the restroom, she later agreed when a nurse suggested a catheter. “That’s how they got the urine,” she said. “They took it out of the catheter.”
After giving birth, she was being moved to another room when a nurse stopped her and told her not to breastfeed because she had tested positive for marijuana earlier in her pregnancy.
When she got to the room, another nurse told her to “pump and dump” her breast milk because her test had come back positive. “That’s when I realized I was drug tested in the birthing room,” Terisa said.
Her newborn son was also tested, she said, but the hospital called New York City Administration for Child Services (ACS) before even doing that test.
“I felt like they were trying to attack me, like they wanted to see my baby get taken away,” she said. “That’s just how I felt for them to do it so quickly.”
Newsweek has contacted Brookdale Hospital for comment multiple times by phone.
An ACS spokesperson told Newsweek in an email: “By law, protecting privacy of families, we cannot share information about whether a family has a case with ACS, or case details.”
The spokesperson added that “by both state and local policy, neither a positive drug test of a parent nor a positive toxicology of a newborn baby, is in and of itself a basis for a determination that evidence of abuse or neglect exists. We are working closely with health professionals by helping hospitals and other medical staff understand the impact reporting has on families and that reports should only be made when there is a concern for a child’s safety, along with assessing whether other supports outside the child welfare system can help the family.”
“Our position is that it doesn’t matter what ultimately the test results are, there’s a violation of pregnant patients,” Legal Momentum’s legal director Jennifer Becker, who is representing Terisa, told Newsweek, noting that marijuana is a legal substance in New York.
“The instant that a medical provider is taking their bodily fluid and testing it for drugs without their informed consent, that alone is a violation of bodily autonomy, privacy, patient rights, and really concerning.”
Black Woman Are More Likely To Be Drug Tested
Terisa’s complaint alleges that she was discriminated against on the basis of sex, pregnancy, race and marital status. She is a Black woman who is not married to her partner, who she says was listed as the “putative” father on hospital documents.
Although the full scope of the issue is unclear, Becker pointed to a recent study that found Black patients are more likely to be drug tested regardless of a history of substance use.
“Certainly, there are some hospitals or medical practices that have as a policy, all pregnant patients are subjected to these urine drug screens,” she said. “Legally, that poses a very serious discrimination issue because you’re classifying medical treatment based on sex and pregnancy.
“Then in other instances, there is discretion in that it’s kind of left to individual providers. There we’re seeing the decision-making on who gets tested and who doesn’t, is really just being built upon many different layers of biases. In those situations, Black women are being tested at a much higher rate.”
In November 2020, the New York City Commission on Human Rights announced it was investigating three hospitals (Montefiore, Mount Sinai, and New York Presbyterian) to determine if their policies and practices on drug testing pregnant patients were discriminating against Black and Latinx families. The commission said advocates have consistently reported that “hospitals continue to use a single unconfirmed positive screen as a reason to report parents” to the State Central Register of Child Abuse and Maltreatment.
Another concern is the assumption that substance use means a child is being abused or neglected, Becker said.
“A lot of times we’re seeing this automatic conclusion that substance use disorders, or even just substance use period, is an indication of child abuse,” she said.
The same month the commission announced the probe into drug testing practices at three hospitals, New York agencies, including ACS, issued guidance that said “a positive toxicology result for a parent or a newborn, by itself, does not constitute reasonable suspicion of child abuse or maltreatment, and thus does not necessitate a report” to the register.
Meanwhile, the nonprofit Pregnancy Justice wrote in a fact sheet last year that research has found there is no scientific evidence of “unique, certain, or irreparable harm” for fetuses exposed to cocaine, methamphetamine, opioids, or cannabis in utero.
“The principal import of existing research is not that drug use during pregnancy is ‘safe,’ but rather that no scientific basis exists for concluding that exposure to these substances will inevitably cause harm,” the document said. “In other words, the fact that a baby was exposed to a certain drug in utero does not mean the baby was harmed due to that exposure.”
But even when positive test results are false, records are rarely amended to indicate that, Becker said, and continue to affect patients when they seek medical treatment from other providers.
She said: “They become biased at least implicitly in how they treat the patient and so there’s this perpetual harm that patients are seeing for themselves and their child in the care that they get later, even from other providers.”
Becker is concerned that drug testing practices will deter pregnant patients from seeking medical treatment and exacerbate existing racist disparities in healthcare. The maternal mortality rate for Black women, she noted, is already nearly three times higher than for white women. In 2021, the most recent year for which figures are available, it was 69.9 deaths per 100,000 live births, according to the CDC.
“We’ve seen people be unwilling to seek even regular prenatal treatment out of fear that they’re going to be reported to Child Protective Services,” Becker said, noting that research shows Black children are overrepresented in the country’s child welfare system.
The American College of Obstetricians and Gynecologists is among leading authorities that reject the practice of drug testing pregnant patients without their consent and knowledge, because of the potential for false positives and legal consequences due to any mandatory reporting requirements.
‘I Felt Like My Back Was Against the Wall’
Terisa says the ACS case worker who visited her home questioned her young children about drug use.
Her daughter, who was 9 at the time, was terrified. “My daughter is asking me questions, saying if I’m gonna die because of smoking,” she said.
Terisa was told that instead of a formal investigation, she could go through a process called the CARES program.
“I felt like my back was against the wall,” she said. “I felt like, they wouldn’t let me leave the hospital with my baby if I didn’t cooperate or if I put up any type of resistance. I felt like I couldn’t do anything, really.”
The case worker who visited Terisa said her apartment was too cluttered and to hire a cleaning service, she said.
“They tried to say it was voluntary, but in the same breath, saying, ‘Well, if you don’t do it, we can escalate this to an investigation and force you to do it,’” she said.
She went along with it, and she and her partner were drug tested every two weeks. About three months after she gave birth, Terisa received a letter saying her case was closed.
But because she chose the CARES program over an investigation, the case remains on Terisa’s records. She could only seek to have her record expunged if ACS determined that child abuse or neglect was not founded after an investigation.
“It’s like really this catch-22,” Becker said. “They could reopen it, they could use it against her. They basically went through everything of an investigation and then don’t have like a real resolution.”
Concerns in a Post-Roe World
The use of a pregnant patient’s drug tests to trigger investigations is also alarming in the aftermath of the overturning of Roe v. Wade, Becker said.
“This was definitely happening while Roe was still the law of the land,” Becker said. But the use of a pregnant patient’s drug tests to launch investigations by child services in a post-Roe world indicates an acceptance of the notion of fetal personhood, she said.
“We’re talking about conduct of the pregnant person while they were pregnant,” Becker said. It “poses serious threats to how the government might be able to surveil pregnant people using drug testing. We see it as a very slippery slope.”
Kate, Kaitlin and Terisa feel they were robbed of the joy of bringing home their newborns, and want to ensure no-one else experiences what they did.
“I just want them to know that it’s not OK for them to do that to people,” Terisa said.
The hospital “took that beautiful moment from me, and I’ll never get it back,” Kaitlin said. “There needs to be more public awareness about what a very real problem this is, not just at Virtua Voorhees, but at hospitals everywhere.”
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