The Legality of Drug-Testing Procedures for Pregnant Women (2022)

State legislators, law enforcement officials, and physicians have struggled to reach consensus on how to identify, treat, and possibly punish women who abuse illegal substances during pregnancy. Between 1992 and 1995, the number of states that prosecuted drug-addicted pregnant women increased nearly threefold. No state has yet crafted a law specifically criminalizing drug addiction in pregnant women, choosing instead to prosecute women under child endangerment and drug distribution laws [1]. The stakes for pregnant women who abuse drugs are often high; they may face jail time, loss of custody when the child is born, and denial of welfare benefits for the baby [2].

When this effort to crack down on pregnant women who are addicted to illegal drugs enlists physicians to test for these substances and collect evidence, many ethical and legal questions arise. Law centers that specialize in advocacy for women question both the constitutionality and the morality of forcing physicians to fulfill the role of law enforcement officers in the course of treating pregnant women. The Supreme Court has recognized that addiction is an illness, and that criminalizing it is a violation of the Eighth Amendment, which prohibits cruel and unusual punishment [1]. Those working on behalf of pregnant women claim, and the Supreme Court agrees, that hospital policies of drug testing for the purpose of prosecution rather than treatment actually harm fetal health by discouraging women who most need assistance from seeking prenatal care [3].

Studies have shown that pregnant women who abuse drugs are much more likely to give birth to healthy babies if they receive prenatal care, even if they do not stop using drugs during pregnancy [4]. Furthermore, the patient-doctor relationship is compromised, and quality of care may suffer when women cannot fully disclose problems of addiction to their physician for fear of prosecution [5]. Most major medical organizations, including the American Medical Association, the American College of Obstetrics and Gynecology, and the American Academy of Pediatrics oppose using drug tests and punitive measures to manage the problem of addiction during pregnancy. Instead, these groups advocate increased treatment options and improved prenatal care for at-risk women and fetuses [6].

InFerguson v. City of Charleston, the Supreme Court offered guidance for implementing constitutionally sound and ethically appropriate drug testing policies. This 2001 case tested the constitutionality of a Charleston, South Carolina, hospital's partnership with law enforcement officials to create a procedure to identify pregnant women suspected of drug abuse. The protocol specified operational guidelines from the police, including instructions for the hospital staff on how to maintain a proper chain of evidence. The policy listed criteria for identifying suspicious women, such as lack of prenatal care, late prenatal care, and previously known substance abuse. Hospital staff tested the women's urine for drugs, but they did not act under the power of a search warrant, nor did they receive informed consent from the patients before conducting the tests. The hospital staff then turned over results of the tests and the patients' discharge summaries, which contained confidential medical information, to the prosecutor's office and the police, who then promptly arrested the patients.

The search and arrest policy of the hospital did not lead to a reduction in drug use, offer changes in prenatal care, improve pregnancy outcomes, prescribe special care for newborns, or increase the number of women successfully completing drug treatment programs [6]. In short, it seems that the principal goal was to punish addicted women.

(Video) Pregnancy and Drug Testing in the OBGYN Office

The petitioners inFerguson v. City of Charlestonchallenged the constitutionality of the drug tests, claiming that performing the tests in the absence of a warrant or informed consent violated the patients' Fourth Amendment protection against unreasonable search and seizure. The Supreme Court agreed, citing several aspects of the policy in their reasoning. First, the program was developed by the hospital in conjunction with police, so that the health professionals who carried out the testing became extensions of law enforcement. The Court reasoned that, when physicians are acting at the behest of the state to collect evidence, they have a special obligation to inform their patients of their constitutional rights. The Court recognized that health care workers might have a duty to report evidence of criminal conduct inadvertently acquired during treatment without informing patients of their Fourth Amendment rights. In theFergusoncase, however, the employees were not acquiring evidence of drug use to further treatment goals, but rather for prosecution purposes only, which made them extensions of law enforcement and therefore responsible for informing patients of their rights. While patients might expect that results of testing done in association with their treatment could be turned over to law enforcement, they would not expect that doctors would perform the tests for the sole purpose of obtaining evidence for criminal sanctions.

Second, the Court saw the involvement of prosecutors and police in the actual daily drug testing as clear evidence of the point made above—the policy was not intended to improve treatment options for pregnant women but to gather evidence for law enforcement, bypassing constitutional protections to do so. Third, the Court recognized that this program's central feature was the use of law enforcement to coerce women into drug rehabilitation and not the creation of more treatment options for women and the unborn. The Court acknowledged that the invasion of patient privacy in this case was severe due to the deceit involved in the testing and the unauthorized dissemination of confidential medical information to a third party. Police received patient records detailing medical treatment and history, not simply drug test results.

Legal Drug-Testing Policies

Based on the Supreme Court's decision inFergusonand recommendations from leading medical organizations, hospitals are now able to craft drug testing and treatment policies that are both constitutional and ethically sound. First, medical professionals should know that, if they perform testing for the specific purpose of gathering evidence of criminal conduct by patients, they have an obligation to inform the patients of their constitutional rights to protection from unreasonable search and seizure [1]. Hospitals that fail to inform patients of their rights may be open to civil liability for monetary damages. Second, testing policies that are developed with law enforcement agencies, employing their protocols, are more likely to be deemed unrelated to treatment and thus be perceived as being used only to further prosecution. To avoid such categorization, hospitals should develop testing procedures based on medical care and treatment options, independent of police or prosecutors. Third, as Lisa Harris and Lynn Paltrow note, "no state authorizes or expects physicians to use medical evidence of addiction for criminal prosecution" [1].

The Supreme Court recognizes that a physician's duty is to provide sound medical treatment to his patient, not to act as an extension of law enforcement. Physicians serve medical—not legal—roles in the treatment of pregnant women. Health care professionals who act on behalf of the state rather than for their patients breach the ethical duties of the patient-physician relationship. Such a breach erodes confidence and trust in the medical community, resulting in poor disclosure by patients, which, in turn, may dramatically reduce the efficacy of diagnosis and treatment. Physicians' duty of care lies first and foremost with the patient. Ultimately, to preserve constitutional rights and the ethical patient-doctor relationship, drug testing policies should encourage open communication between patient and physician, emphasize the availability of treatment options, and advocate for the health of woman and child.

  • Mental health/Addiction,
  • Mental health/Substance use,
  • Autonomy/Informed consent,
  • Decision making/Autonomy,
  • Ethics/Health policy

References

  1. Harris LH, Paltrow L. The status of pregnant women and fetuses in US criminal law. JAMA. 2003;289(13):1697-1699.
  2. Cooper CL. Pregnant and punished.Planned Parenthood.Accessed November 27, 2007.

    (Video) The Importance of Following Forensic Principles in Newborn Drug Testing by Dr. Irene Shu

  3. Ferguson v City of Charleston, 532 US 67 (2001).

    Google Scholar

    (Video) CAPTA & CARA Community Teach-In: Pregnancy, Birthing, Hospitals, & Drug Testing

  4. Racine AD, Joyce TJ, Anderson R. The association between prenatal care and birth weight among women exposed to cocaine in New York City. JAMA. 1994;271(15):1161-1162.
  5. American College Obstetrics and Gynecology (ACOG) Committee on Ethics. ACOG Committee Opinion. Number 294, May 2004. At-risk drinking and illicit drug use: ethical issues in obstetric and gynecologic practice.Obstet Gynecol.2004;103(5 Pt 1):1021-1031.

    PubMed

    (Video) How to Pass a Drug Test (After Doing Lots of Drugs) | Vanity Code | Vanity Fair

  6. Center for Reproductive Rights.The Center's Cases: Pregnant Women's Rights.Accessed November 27, 2007.

(Video) Pregnant Women SUE After Nonconsensual Drug Screenings

FAQs

Do they drug test you when you're pregnant? ›

Screening for substance use in all pregnant women is recommended by both the American College of Obstetrics and Gynecology (ACOG) and the American Society of Addiction Medicine (ASAM) in order to provide women and their fetuses and children with the best care during and after pregnancy.

Can pregnancy cause you to fail a drug test? ›

The United States Supreme Court has ruled that hospital workers cannot test pregnant women for use of illegal drugs without their informed consent or a valid warrant if the purpose is to alert the police to a potential crime.

What is the most commonly used drug during pregnancy? ›

Drugs are used in over half of all pregnancies, and prevalence of use is increasing. The most commonly used drugs include antiemetics, antacids, antihistamines, analgesics, antimicrobials, diuretics, hypnotics, tranquilizers, and social and illicit drugs.

Does Obgyn urine test for drugs? ›

Ultimately until the government legislates universal drug testing for pregnant women, the choice is still in the hands of the Ob/Gyn whether to drug screen or not, however, the unborn child does not get to choose alcohol, nicotine or other drugs if the mother is using.

How long do drugs stay in a newborn urine? ›

These tests detect recent use of cocaine and its metabolites, amphetamines, marijuana, barbiturates, and opiates. Cocaine can be detected in urine 6-8 hours after use in the mother and as long as 48-72 hours after use in the newborn.

Can a mother be charged for using drugs while pregnant? ›

Criminal Law

While no state has enacted a law specifically criminalizing drug use during pregnancy, prosecutors have relied on a host of criminal laws already on the books to attack prenatal substance abuse.

Do they test newborn babies for drugs? ›

Universal testing involves screening for neonatal drug exposure following each delivery. This approach is beneficial in that it prevents the use of biased testing protocols and may help to identify cases of neonatal drug exposure that would otherwise go untreated.

What happens if you test positive for drugs when pregnant? ›

In utero exposure to drugs puts the fetus at risk of premature delivery, physical, and cognitive developmental problems, and can increase the risk of neonatal mortality (Chasnoff, 1988; Chasnoff et al., 1992; Stover and Davis, 2015).

Which drug should be avoided in pregnancy? ›

Some of the over-the-counter medicines that increase the chances of birth defects are: Bismuth subsalicylate (such as Pepto-Bismol). Phenylephrine or pseudoephedrine, which are decongestants. Avoid medicines with these ingredients during the first trimester.

What drugs can you not take during pregnancy? ›

Medications You Should Avoid During Pregnancy
  • Chloramphenicol.
  • Cipro and levofloxacin.
  • Primaquine.
  • Sulfonamides.
  • Trimethoprim (Primsol)
  • Codeine.
  • Ibuprofen (Advil, Motrin)
  • Warfarin (Coumadin)
6 May 2019

Which drugs used in pregnancy? ›

Tables
ClassDrug (Brand)
Nausea and Vomiting
AntihistaminesDimenhydrinate (Dramamine), diphenhydramine (Benadryl), doxylamine (Unisom), doxylamine/pyridoxine (Diclegis)
PhenothiazinesProchlorperazine (Compazine), promethazine (Phenergan)
BenzamidesMetoclopramide (Reglan)
12 more rows

Why does my Obgyn take a urine sample every visit? ›

For prenatal visits and pregnant women, frequent urine tests are critical for ensuring the overall health of the mother and the child. They can be used to screen for health issues such a preeclampsia and gestational diabetes.

How far back does meconium go? ›

Meconium drug testing can detect maternal drug use during the last 4 to 5 months of pregnancy. A negative result does not exclude the possibility that a mother used drugs during pregnancy.

How accurate is meconium drug testing? ›

The total number of positive samples was 55, of which 54 were positive in meconium and 34 were positive in hair. The calculated sensitivity for cannabis in meconium was 98%, and for hair it was 71%.

How far back can drugs be detected in a drug test? ›

Illicit substances are detectable for only five to 10 days in urine; whereas, hair drug tests can detect drug or alcohol use for up to 90 days. Blood testing is very accurate, but costly and invasive. It does have a shorter detection period (minutes to hours), however.

How can I detox my body during pregnancy? ›

7 Detox Food Swaps to Make During Pregnancy
  1. Choose brown rice and whole-grain pastas and breads instead of white. ...
  2. Opt for organic fruit and vegetables when you can. ...
  3. Limit foods that are high in salt. ...
  4. Avoid foods made with chemical additives. ...
  5. Eat grass-fed and hormone-free meat and poultry. ...
  6. Be careful what you fish for.
22 Jan 2019

How much meconium is needed for a drug screen? ›

How much meconium is needed for the test? A minimum of 3 grams of meconium (about a teaspoon) is normally required.

How long do drugs stay in breastmilk? ›

Drugs. If you use amphetamines, ecstasy, cocaine or heroin, you should not breastfeed for 24 hours after use. If you smoke cannabis or tobacco you should breastfeed your baby before you smoke, and smoke outside and away from the baby.

How does drugs affect the development of a baby? ›

Birth defects that often occur due to drug use include seizure, stroke, and intellectual and learning disabilities. Fetuses can become dependent on the drug(s) the mother is using and may experience withdrawal symptoms after delivery.

Can drugs cause birth defects? ›

Certain drugs such as alcohol, some illegal drugs, and some prescription and over-the-counter medications are known to cause birth defects if taken during pregnancy. Drugs that can cause birth defects are called 'teratogens'. A teratogen is a substance that interferes with the normal development of a fetus.

What drugs are tested in meconium? ›

In terms of sensitivity, meconium has previously been considered the best tissue for evaluating fetal drug exposure. As such, there are a large number of methods available for screening across most drug classes, including cocaine, opioids, marijuana, methamphetamine, cotinine, and alcohol use (Wright, 2015).

How long will delta 8 stay in your system for a drug test? ›

Last Words. While delta-8 THC's effects last up to five hours in your body, the metabolites can stay in your system for up to 90 days. Luckily, the most common tests can detect metabolites for only a few days. However, if you are a chronic user, the test can yield positive even after 30 days.

What do they test urine for at prenatal visits? ›

Why is a urine analysis important during pregnancy? A urine test is used to assess bladder or kidney infections, diabetes, dehydration, and Preeclampsia by screening for high levels of sugars, proteins, ketones, and bacteria.

Why do they check your urine at every prenatal visit? ›

Urine tests during pregnancy. You'll have a urine test at your first prenatal visit and at later visits, too. The urinalysis tests for sugar, protein, ketones, bacteria, and blood cells to make sure you don't have a condition such as a UTI, gestational diabetes, or preeclampsia.

How is a newborn tested for drugs? ›

Testing in newborns can be performed on urine, blood, meconium, hair, or umbilical cord blood or tissue samples. Immunoassay screening of urine and blood provide the most rapid results with urine usually preferred due to availability through noninvasive bag specimen collection.

What happens if a baby tests positive for drugs? ›

Neonatal exposure to some drugs during pregnancy can have harmful effects on development and may lead to acute adverse events, including neonatal abstinence syndrome (NAS) and infant mortality. Prenatal drug exposure may also contribute to long-term behavioral effects and developmental deficits.

When do they check urine in pregnancy? ›

In many cases, you might get a positive from an at-home test as early as 10 days after conception. For a more accurate result, wait until after you've missed your period to take a test. Remember, if you take a test too soon it could be negative even if you are pregnant.

Do you give a urine sample at every prenatal appointment? ›

Three of pregnancy's more common complications are gestational diabetes, preeclampsia and urinary tract infections — all of which have markers that show up in your urine. That's why at every prenatal visit, you'll have to give your doctor a urine sample.

What do doctors test for in urine at a physical? ›

A routine urinalysis can tell your doctor a great deal. Diabetes, urinary tract infections, and kidney problems are among the many medical conditions that can be detected by routine urinalysis results. Very often, a routine urinalysis is part of a general physical exam.

Do they automatically drug test newborns? ›

ACOG states, “Urine drug testing has also been used to detect or confirm suspected substance use, but should be performed only with the patient's consent and in compliance with state laws.” However, newborn infants may be tested without the mother's consent.

What drugs are tested in umbilical cord? ›

Umbilical cord tissue performs as well as meconium in assessing fetal drug exposure to amphetamines, opiates, cocaine, and cannabinoids.

How far back can drugs be detected in a drug test? ›

Illicit substances are detectable for only five to 10 days in urine; whereas, hair drug tests can detect drug or alcohol use for up to 90 days. Blood testing is very accurate, but costly and invasive. It does have a shorter detection period (minutes to hours), however.

Can a mother be charged for using drugs while pregnant? ›

Criminal Law

While no state has enacted a law specifically criminalizing drug use during pregnancy, prosecutors have relied on a host of criminal laws already on the books to attack prenatal substance abuse.

What happens when a child fails a drug test? ›

If you fail a drug test, or if the other party fails a drug test, there are consequences in a child custody case. The court could order that the failing party have little to no visitation with the child and if any visitation, then it will be supervised.

Videos

1. Mother discusses umbilical cord drug testing her newborn son
(WANE 15 News)
2. Will pregnancy alter a drug test - Can pregnancy cause a false positive drug test
(yes OR no)
3. How Accurate Are Drug Tests?
(Seeker)
4. Universal Drug Testing For Every Pregnant Woman Presenting In Labor
(Universal Drug Screening on Every Pregnant Woman Presenting in Labor)
5. How to pass a drug test if someone watches (pretials, rehab, probation, etc) 2021
(Brittany Ramone)
6. The Legal Landscape for Pregnant and Parenting People Who Use Drugs - Lynn Paltrow
(Academy of Perinatal Harm Reduction)

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