A newborn baby is shown lying in a bassinet at a hospital, with a focus on their toes and feet. – Gorodenkoff // Shutterstock
More states, from New York to Arizona, are considering limiting drug testing for newborns
Several states are exploring legislation to protect patients who may be subjected to drug testing upon giving birth. Three bills have been introduced in response to revelations from an investigative series by The Marshall Project and Reveal, shedding light on the negative outcomes of drug testing during childbirth. These include instances where patients were wrongly reported to child welfare authorities due to false positive or misinterpreted test results, and cases where women faced investigations and child removals over medications administered by hospitals themselves.
In New York, a bill is progressing that would prohibit hospitals from conducting drug tests or asking screening questions without obtaining informed consent from patients. Meanwhile, proposed bills in Arizona and Tennessee did not advance out of their legislative sessions.
State Rep. Linda Rosenthal, a Democrat from Manhattan, emphasized the detrimental impact of secret drug testing on families, citing instances where women were reported to child welfare due to positive tests triggered by substances like poppy seeds and prescribed medications. Despite facing opposition from state lawmakers, the New York bill – initially introduced by Rosenthal in 2019 – gained more support following The Marshall Project’s reporting on hospital drug testing.
If enacted, the law would only allow hospitals to drug test birthing patients and newborns if deemed medically necessary, and they must secure informed consent from patients, including informing them of potential legal repercussions of a positive test result.
Similar bills were also introduced in Tennessee, sponsored by both Democrats and Republicans, highlighting bipartisan concern towards protecting parental rights and preventing unjust separations of families over drug testing inaccuracies.
In Arizona, advocates plan to push for an informed consent bill in the next legislative session, along with a broader bill that failed to progress this year. The push for these reforms was fueled by investigations revealing troubling cases of child welfare interventions based on flawed drug testing practices.
Arizona law currently mandates that healthcare providers must notify child welfare if a newborn is exposed to controlled substances, including prescribed medications like buprenorphine and naloxone, or methadone. In response to this requirement, Garin Marschall, co-founder of Patient Forward, expressed concerns about the existing processes and sought to prevent similar incidents in the future.
Marschall and colleagues proposed legislative changes to prevent positive drug tests alone from triggering child welfare reports or investigations. Under the proposed legislation, hospitals would be required to inform the health department, rather than child welfare authorities, if healthcare providers do not suspect abuse or neglect. Similar laws have been enacted in states like Massachusetts and New Mexico, and hospitals nationwide have adjusted their drug testing protocols accordingly.
Advocates in New York have encountered resistance to similar measures, as some lawmakers fear that requesting patient consent for drug testing may lead to refusals. However, healthcare providers assert that patients rarely decline drug tests, and the results often do not offer significant medical insights. Instead, screening questionnaires that gather information on a patient’s history of drug use have proven effective in identifying addiction without unnecessary involvement from child welfare services.
Experts emphasize the importance of maintaining trust and open communication between doctors and patients to provide optimal care. Punitive policies can deter pregnant women from seeking prenatal care, ultimately jeopardizing the well-being of both the child and the mother. The article was produced by The Marshall Project, a nonpartisan news organization focusing on criminal justice issues, and distributed by Stacker.
