In the wake of the Supreme Court decision that overturned the right to abortion, reproductive health Advocates say they worry 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 me Roe on the books, there was prosecution for pregnancy outcomes,” said Emma Roth, an attorney for the National Advocates for Pregnant Women. From Texas to California, women have faced murder charges for stillbirth and “self-induced abortion.” NAPW has tracked more than 1,700 cases between 1973 and 2020 in which pregnancy contributed to arrest or detention, and some legal experts warn that this could become more common in a post-Roe world. In many of those cases, Roth said, a doctor called the police. With Roe gone, women could lose more of their abortion rights An overlooked and common example of this phenomenon, experts say: physician providers trying drugs on pregnant patients without their consent. Drug screening for pregnant patients takes several forms: The American College of Obstetricians and Gynecologists recommends universal screening by surveying patients about potential risk factors. After that, a urine drug test is recommended if the test shows possible substance abuse. Research has suggested that urine screening, in general, could have some value early in pregnancy, which could give doctors time to intervene in any substance abuse issues before they affect the fetus. However, many medical experts say drug screening in pregnant patients has been fraught in practice. While urine tests are done regularly during pregnancy to monitor conditions such as diabetes, dehydration or pre-eclampsia, women may not know they can also be used to screen for drugs. Some legal and medical experts say the practice is common. A recent study, which 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 non-consensual drug testing occurs because those hospital policies are not publicly available, Roth said. Only a small minority of hospitals have publicly said they will end the practice. Mishka Terplan, medical director and senior researcher 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 the drug’s metabolites in the body, they can’t distinguish between occasional and chronic use. Testing a patient against their knowledge can undermine trust between them and their provider, Terplan said — particularly if the provider goes to law enforcement or social services based on those results (that’s a big of why major medical associations recommend avoiding non-consensus drug trials ). Given the potential harm of launching an investigation, which could lead to the child being separated from their parents, Terplan said: “It would be ethical to disclose to people not only that you are going to be drug tested, but also how the information is shared, so that there is a right to refuse.” Some hospitals say this urine test is done to make sure the fetus isn’t exposed to drugs in the womb, and that reporting positive results to state authorities is a matter of state and federal policy, which requires them to act on possible child abuse or neglect. (Protected health information may be shared with government authorities if child abuse is suspected.) A mother narrowly lost her newborn after failing a drug test. Her doctor suspects poppy seeds. In several high-profile cases, women who said they had ingested poppy seeds faced investigations after testing positive in urine tests that were allegedly done 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 claim they were drug tested without their consent — tests that came back false positives for both. And they fight back: Both have testified complaints with government agencies against their respective hospitals. In their complaints, the women said they were referred to child welfare services without being given a second, confirmatory test and that investigations were initiated solely on the hospital’s report. These investigations had far-reaching implications, 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. This was not what Krystal had expected her maternity leave to look like: sprawled out on the big brown couch in her living room, surrounded by papers, her face glowing in the light of an ever-expanding Google Doc. While her husband walked around the apartment with their newborn son, she called law firms, trying to find a lawyer who could take her case, she said. (Crystal is identified by her first name out of concern for stigma.) Friends had told Crystal, 34, to expect to be treated “like gold” by hospital staff when she gave birth to her child – her first. After becoming pregnant at the start of the pandemic and dealing with some pregnancy complications, including gestational diabetes, Crystal was looking forward to being embraced by people there to support her and her baby. What he claims unfolded, however, was a “nightmare.” A week before Christmas 2020, Crystal was admitted to Garnet Health Medical Center in Orange County, New York after her water broke. Before going to the hospital, Crystal had eaten a heavier breakfast than usual: a bagel sandwich. At the hospital, he did a urine test, just like in the previous months. According to Crystal’s complaint, it wasn’t until a nurse delivered the results of the urinalysis that Crystal learned she’d been drug tested: In fact, she’d tested positive for opiates. Crystal was shocked. She had not ingested any drugs or controlled substances at any point in her pregnancy, he said. Then it hit her: Her breakfast sandwich was on an “everything” bun, which is coated with sesame seeds, garlic, salt, dried onion — and poppy seeds. Crystal had previously seen reports of poppy seeds causing false positives. Was that what happened to her? Crystal claims she immediately asked if she could take the test again, but wasn’t given the chance to do so until after she gave birth — and after hospital staff had reported her to the New York Statewide Central Register, which investigates complaints of child abuse. The day after her son was born, Crystal learned that hospital staff had also tested him for drugs, she said. The test was negative. At that point, White’s nursing staff treated Crystal, who is Latina, in an “accusatory and dismissive” manner, her complaint alleges. New York Gov. Kathy Hochul’s office told The Post, “A parent’s positive drug test, absent other factors, would not by itself provide reasonable cause to substantiate a report of abuse or maltreatment.” Garnet Health Medical Center, which faces another complaint Hospital staff falsely reported a false-positive test to state authorities, arguing in a written rebuttal to the allegations that it was “medically appropriate” and “justified” to screen pregnant patients. “The hospital’s practice of drug testing obstetric patients and reporting such results to the State Central Registry was part of the hospital’s efforts to protect the mother and baby and comply with its ‘mandatory reporter’ obligations,” his lawyers wrote hospital. rebuttal, which was shared with The Post. “GHMC does not admit that its staff received treatment [Crystal] inappropriate,” they added. Within 12 hours of leaving Garnet, Crystal said, a case worker showed up at her home. A full investigation would take 60 days, she was told. And even if they found abuse and child abuse “unsubstantiated,” the case file would remain in her file for 10 years, accessible only to a select group of people, including child welfare workers and law enforcement. Crystal felt forced into a battle she never expected. And he ate her, he said. She spent so much of her pregnancy, so much of her life, being “scrupulous” – a habitual rule follower. How could this happen to her? For much of her son’s first year of life, he broke down at least once a day, Crystal said. Still, she remained diligent: She was so involved in the opposition—against the hospital, the state—that she lost time to bond with her child, she said. “I was literally eaten away by that,” Crystal said. “This cannot happen. This is not okay.” After nine months of self-defense, Crystal managed to get her record expunged. But she is still waiting for her complaint against Garnet to proceed. Crystal demands an apology and compensation from the hospital, that her false positive be expunged from her medical records, and that Garnett stop drug testing obstetrics patients without their consent. Garnet, in its dissent, said it updated its policy through a “practice notice” to its nursing staff, “which changed the practice of drug use screening.” For Crystal, the pain of the investigation remains. There is also the new distrust in power. She grew up to believe in doctors. That changed, she…
