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As a result of the Supreme Court ruling that overturned the right to abortion, reproductive health advocates say they are worried that policymakers and law enforcement will take more steps to criminalize pregnancy outcomes — arresting women for miscarriages and suspected attempts to terminate their pregnancies. This phenomenon is not new, advocates say.
“Even with Rowe there has been prosecution of pregnancy outcomes on the books,” said Emma Roth, an attorney with the National Advocates for Pregnant Women.
From Texas to California, women face charges of murder for stillbirths and “self-induced abortion.” NAPW has tracked more than 1,700 cases between 1973 and 2020 in which pregnancy contributed to an arrest or detention, and some legal experts warn it could become more common afterRowe world. In many of those cases, Roth said, a medical professional called the police.
With Roe gone, women stood to lose more than abortion rights
Experts say an overlooked and common example of this phenomenon is: medical providers drug-testing pregnant patients without their consent.
Drug screening for pregnant patients takes several forms: The American College of Obstetricians and Gynecologists recommends universal screening by questioning patients about potential risk factors. A urine drug test is then recommended if the screening indicates possible substance abuse. Research suggests that urine screening in general could have some value in early pregnancy, which could give doctors time to intervene with any substance abuse problems before they affect the fetus.
But many medical experts say screening pregnant patients for drugs in practice is fraught with difficulties. While urine tests are routinely taken during pregnancy to monitor conditions such as diabetes, dehydration or pre-eclampsia, women may not know that they can also be used to screen for drugs.
Some legal and medical experts say the practice is common. A recent study that 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 on how often drug screening occurs without consent because those hospital policies are not publicly available, Roth said. Only a minority of hospitals have publicly stated that they will end the practice.
Mishka Terplan, medical director and senior research fellow 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 can’t tell the difference between occasional and chronic use.
Testing a patient against his knowledge can undermine the trust between him and his provider, Terplan said — especially if the provider contacts law enforcement or social services based on those results (which is a big reason why major medical associations recommend no drug tests are done without consent).
Given the potential harm of launching an investigation that could result in the child being separated from his parents, Terplan said, “It would be ethical to disclose to people not only that you will be drug testing, but also how the information is shared so that you have the right to opt out.”
Some hospitals say that this urine screening is done to ensure that the fetus is not exposed to drugs in the womb, and that reporting positive results to state authorities is a matter of state and federal policy that requires them to take action on possible child abuse or neglect. (Protected health information may be released to government authorities if child abuse is suspected.)
A mother briefly lost her newborn after failing a drug test. Her doctor suspected poppy seeds.
In several high-profile cases, women who said they had ingested poppy seeds faced investigations after testing positive for 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 with two women, one in Illinois and one in New York, who say they were drug tested without their consent — tests that returned false positives for both. And they’re fighting back: they’ve both filed complaints to government agencies against their respective hospitals. In their complaints, the women said they were reported to child protection agencies without being given a second, confirmatory test and that investigations were launched based solely on hospital reports.
These investigations had far-reaching effects, despite the fact that in some ways the women experienced the best-case scenario: social services ultimately found no wrongdoing or abuse on the part of the mothers. The Illinois lawsuit is being filed 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 big brown sofa in her living room, surrounded by paperwork, her face glowing in the light of an ever-expanding Google Doc. While her husband moved around the apartment with their newborn son, she called law offices trying to find a lawyer to take her case, she said. (Crystal identifies herself by her first name for fear of being stigmatized.)
Friends had told Crystal, 34, she could expect to be “treated like gold” by hospital staff when she gave birth to her child – her first child. After becoming pregnant early in the pandemic and experiencing several pregnancy complications, including gestational diabetes, Crystal was looking forward to being embraced by the people there to support her and her baby.
What she claims happened, however, was a “nightmare.”
A week before Christmas 2020, Krystal was admitted to Garnet Health Medical Center in Orange County, New York 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 had her urine tested, as she had done the previous months.
According to Crystal’s complaint, it wasn’t until a nurse provided the results of the urine test that Crystal learned she had been drug tested: she had actually tested positive for opiates.
Crystal was shocked. She said she did not take any medications or controlled substances at any point during her pregnancy. Then it hit her: The sandwich she had for breakfast was on an “everything” bagel, which is encrusted with sesame seeds, garlic, salt, dried onions and poppy seeds. Crystal had seen reports of poppy seeds causing false positives before. Is that what happened to her?
Crystal claims she immediately asked if she could test again, but wasn’t given the opportunity to do so until after she gave birth — and after hospital staff reported her to the New York State Central Registry, which is investigating allegations of child abuse.
The day after her son was born, Crystal learned that hospital staff had also tested him for drugs, she said. This test was negative. Up until that point, White’s medical staff had treated Crystal, who is Hispanic, in an “accusatory and dismissive” manner, her complaint alleges.
New York Gov. Kathy Hochul’s office told The Post, “A positive drug test of a parent, without other factors present, would not by itself provide reasonable cause to substantiate a report of abuse or maltreatment.”
Garnet Health Medical Center, which faces another complaint alleging Hospital staff mistakenly reported a false positive test to state authorities, arguing in a written rebuttal that it was “medically appropriate” and “justified” in screening pregnant patients.
“The hospital’s practice of screening obstetric patients and reporting such results to the State Central Registry was part of the hospital’s efforts to protect both mother and baby and comply with its obligations as a ‘mandatory reporter,'” the hospital’s lawyers wrote in their a rebuttal that was shared with The Post.
“GHMC does not acknowledge that its staff were treated [Crystal] unlawfully,” they added.
Within 12 hours of Garnett’s discharge, Crystal said, a caseworker showed up at her home.
She was told a full investigation would take 60 days. And even if they find the abuse and child abuse to be “unsubstantiated,” the file will remain on her file for 10 years, accessible only to a select group of people, including child welfare officials and law enforcement.
Crystal felt forced into a battle she never expected. And it consumed her, she said. She spent so much of her pregnancy, so much of her life, being “meticulous” – habitually following the rules. How could this happen to her?
For most of her son’s first year of life, she broke down at least once a day, Crystal said. But she persisted: She became so busy fighting — against the hospital, the state — that she lost time to bond with her child, she said.
“I was literally consumed by it,” Crystal said. “This cannot happen. This is wrong.”
After nine months of self-defense, Crystal was able to get her record expunged. But she is still waiting for her complaint against Garnett to move forward. Crystal wants an apology and compensation from the hospital, that her false positive result be expunged from her medical records, and that Garnet stop drug testing obstetric patients without their consent.
In its rebuttal, Garnet said it updated its policy through a “practice alert” to its medical staff, “which changed the practice of drug use screening.”
For Crystal, the pain of the investigation remains. There is also the new mistrust in power. She was raised to trust medical providers. That changed, she…
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