Mandatory Drug Testing for New Moms Is a Slippery Slope

Baltimore County resident Elizabeth Eden was in labor when her doctor informed her that she’d tested positive for opiates.

“I said, ‘Well, can you test me again? And I ate a poppy seed bagel this morning for breakfast,’ and she said, ‘No, you’ve been reported to the state,’” she told WBAL TV.

This began Eden’s horrific saga this April, when she gave birth to her daughter Beatrice. Thanks to the drug test, the newborn was kept in the hospital for five days after her birth, and Eden was assigned a caseworker to check up on her at home.

“It was traumatizing,” Eden told WBAL TV.

A positive test for opiates is 300 nanograms per milliliter of blood at St. Joseph Medical Center, where Beatrice was born. Studies show that eating poppy seeds or pastries containing poppy seeds can produce opiate blood levels much higher than that.

Aside from the freakish nature of this one case, Eden’s tribulations points to the larger issue of testing new mothers for drugs in American hospitals. In 2001, the Supreme Court ruled that involuntary testing of pregnant women for drugs was a violation of the Fourth Amendment protections against unreasonable searches. But many cities and states have some regulations about screening new mothers and infants for opiates as a precaution against neonatal abstinence syndrome, the dangerous withdrawal that babies who have been exposed to opiates experience. One of the central debates around this screening is whether it should be “risk-based” or universal. With “risk-based” testing, “you are making a lot of assumptions and it tends to unfairly target low-income women,” gynecology professor Jessica Young told the American Association for Clinical Chemistry in 2016. But universal testing raises the risk of false positives, like in Eden’s case.

Young also warned about the possibility of false positives. “Urine drug testing can be a useful tool. However, because of the importance of patient consent and false positives, it is important that there be appropriate consent processes in place, as well as confirmatory results,” Young said.

According to a report from ProPublica, substance abuse during pregnancy is only criminalized explicitly in two states: South Carolina and Alabama. Another 18 states say that drug use during pregnancy is child abuse, and in three states women who use drugs during pregnancy can be involuntarily committed to a treatment program. In four states, testing is mandatory if drug use during pregnancy is suspected. Women have been prosecuted for drug use during pregnancy in 45 states, and many of them have been incarcerated.

It makes sense to protect babies from syndromes like NAS that are caused by exposure to drugs in utero. But jailing women for their own addictions doesn’t seem like the way to protect them or their children. Neither does the refusal to retest false positives, like Eden experienced. Obviously, many of these laws go hand in hand with anti-choice rhetoric that says anything a woman does to endanger her fetus is equivalent with child abuse or murder. The horrifying 2015 case of Purvi Patel, who was charged with feticide and sentenced to 20 years in prison for a miscarriage, is one example of what can happen when we go down the slippery slope of criminalizing women for what happens inside their own bodies.

CORRECTION: This article previously stated that taking drugs during pregnancy was criminalized in Tennessee. In 2016, that law expired, making it no longer a criminal offense. We regret the error.