Fighting Back Against the Non-Consensual Drug Testing of Pregnant Women [FEATURE]

Two New York state women reported to Child Protective Services after their consumption of poppy seeds resulted in false positives, on drug tests they were never aware of nor consented to as they were giving birth, have filed a complaint against the hospital that ran the tests and then reported them.

The two women, identified only as Crystal H. and Jane Doe, are being represented by the New York Civil Liberties Union (NYCLU) and National Advocates for Pregnant Women (NAPW). The complaints against Garnet Health Medical Center (GHMC) in Middletown were filed with the state Division of Human Rights. They charge that Garnet Health discriminated against both women on the basis of sex and pregnancy by drug testing them without their consent, then interfering with their ability to breastfeed their babies, and referring them and their families to the State Central Registry of Child Abuse and Maltreatment. (SCR), which subjected them to invasive searches.

Crystal's complaint details how, having been routinely providing urine samples to check for blood and proteins during her pregnancy, one urine sample taken after she was admitted for delivery was used without telling her or seeking her consent "for the purpose of testing it for drugs, including opiates." The complaint notes that "GHMC had no medical reason, necessity, or justification" for the test and that the American College of Obstetricians and Gynecologists rejects the practice of drug testing pregnant patients.

To Crystal's surprise, the drug test came back "presumptive positive," and she was then "met with accusatory and dismissive treatment from the primarily white nursing staff." Although Crystal explained that she had eaten a bagel containing poppy seeds, and a staff physician conceded that the poppy seeds could cause the positive result for opiate, GHMC did not run the more accurate confirmatory test as recommended.

After Crystal gave birth, GHMC drug tested her child -- again without her consent -- and he tested negative. Despite even that, Even after the infant's negative test result, and even though Crystal had asked for a second drug test, and even though the initial test result meant "the test provides a preliminary result only, positive results are unconfirmed," GHMC then reported her to the SCR. GHMC only agreed to retest Crystal after it had reported her, and when that test came back negative, it refused to withdraw the report to SCR or inform SCR of the second, negative test result. (Crystal also took a hair follicle drug test that can detect use for up to three months and came up negative for opiates on that.)

That report to SCR resulted in the Oneida County Department of Social Services conducting an invasive search of her home within 12 hours of her release from the hospital. Crystal remained under for suspicion for two months, until the department closed the abuse and maltreatment investigation as "unfounded."

"Garnet Health turned the joy of becoming a new mom into an absolute nightmare. Right after delivery, hospital staff didn't permit me to nurse because of a false positive drug test result after having eaten a poppy seed bagel. Those bonding moments with my newborn are moments I will never get back," Crystal H. said in a press release announcing the legal action. "Across New York State, low income, and Black and Latinx pregnant New Yorkers are threatened with family separation and discriminated against by their healthcare providers based on accusations of drug use alone. I'm taking action today to ensure that our hospitals' care for newborns and their parents is grounded in principles of public health, not racist stereotypes."

Jane Doe's complaint is eerily similar to Crystal H.'s. She, too, innocently partook of a food item containing poppy seeds -- a Sam's Club kale salad with poppy seed dressing -- she, too, was drug tested without her consent or knowledge and deemed a drug user, not allowed to breastfeed her infant, and reported to SCR despite her protestations of innocence. And she, too, suffered the emotional trauma of the experience.

"By drug testing me without my consent and reporting a false presumptive positive result to child welfare authorities, Garnet Health turned what should have been the most meaningful moment of my life into the most traumatic one," she said in the press release. "All because I ate a salad with poppy seed dressing, Garnet Health treated me like an unfit mother, told me I wasn't allowed to breastfeed, repeatedly denied my requests for a confirmatory test, and ensured my name would be on the New York State Central Register of Child Abuse and Maltreatment. At a time when I should be focused on bonding with the baby I have been dreaming of my whole life, I have been forced to grapple with the heartbreaking effects of Garnet Health's discriminatory actions."

The practice of drug testing pregnant women without their knowledge or consent is common in New York, according to NAPW and NYCLU, but is not supported by leading medical organizations. Here, for example, is a 2019 policy statement from the American Medical Association:

"Our AMA will oppose any efforts to imply that the diagnosis of substance use disorder during pregnancy represents child abuse; support legislative and other appropriate efforts for the expansion and improved access to evidence-based treatment for substance use disorders during pregnancy; oppose the removal of infants from their mothers solely based on a single positive prenatal drug screen without appropriate evaluation; and advocate for appropriate medical evaluation prior to the removal of a child, which takes into account the desire to preserve the individual's family structure, the patient's treatment status, and current impairment status when substance use is suspected."

The NYCLU and NAPW are fighting to end the kind of abuses Crystal and Jane Doe faced.

"No parent should ever endure what Crystal and her husband endured," said Gabriella Larios, Equal Justice Works Fellow at the New York Civil Liberties Union. "Nonconsensual drug tests prioritize stigma over science and are a relic of racist War on Drugs myths. Garnet Health, and all hospitals across New York State, must immediately stop drug testing pregnant people in secret, and Albany must pass legislation so that no drug test can take place without a pregnant person's informed consent."

"Garnet Health's practice of drug testing all pregnant patients without their informed consent and reporting test results to child welfare authorities has devastating consequences for new families and constitutes illegal sex discrimination," said NAPW attorney Emma Roth. "We're filing the complaint to shine a light on Garnet Health's discriminatory practices and we hope other hospitals take notice. No new mother should ever face such traumatic and discriminatory treatment."