ELIMINATE DRUG TESTING FOR SUBSTANCE USE SCREENING OF PREGNANT PERSONS AND NEWBORNS
WHY DRUG TESTING OF PREGNANT PEOPLE IS HARMFUL
Drug testing of pregnant people in a health care setting can dissuade people from seeking prenatal care or in seeking treatment for a substance use disorder. Drug testing at hospitals can also unfairly target poor women and pregnant people of color.(1) Anecdotal evidence from hospitals in Los Angeles indicates that county hospitals that serve low income pregnant people routinely test them for drugs, while private hospitals that serve wealthier and white patients do not, even though substance use occurs in all socio-economic groups. Bias and racism can influence which patients are tested and which are reported to child welfare agencies.(2) Black mothers and their infants are 1.5 times more likely to be tested for drugs than nonblack mothers and no more likely to test positive.(3) Combined with reporting of pregnant persons who test positive to child welfare agencies, drug testing can lead to removal of newborns from their mother and ongoing family surveillance. Drug testing of pregnant women creates a “womb to foster care pipeline.”(4)
The American College of Obstetricians and Gynecologists has taken the stand that seeking prenatal care should not expose a person to criminal or civil penalties, like the loss of custody.(5) Policies like drug testing of pregnant people can actually lead to increases in low birthweight or preterm birth babies.(6) Requiring health care providers to drug test and report pregnant people turns providers into arms of the police state.(7) Drug testing in a health care setting erodes providers’ relationships with their patients, and interferes with the provision of effective care. Pregnant patients should be given the ultimate decision making over what testing they receive. The American College of Obstetricians and Gynecologists affirms the “[p]regnancy is not an exception to the principle that a decisionally capable patient has the right to refuse treatment...”(8) The Society for Maternal-Fetal Medicine has also recommended that biologic drug testing be undertaken only with the patient’s informed consent, and only “when its benefits outweigh any potential harms, which include those related to mandatory state reporting laws.”(9)
HOSPITALS ARE NOT REQUIRED TO DRUG TEST PREGNANT PEOPLE
Hospitals are not required to test pregnant women for drugs. The federal Child Abuse and Prevention Act requires states to have policies to “notify” child welfare agencies when babies are “affected by substance abuse” including alcohol use disorder and suffering withdrawal symptoms from prenatal exposure.(10) These notifications are not equivalent to child abuse reports. Nothing in CAPTA requires that pregnant people or newborns be tested for drugs. State law does not require drug testing pregnant people. Indeed, Penal Code section 11165.13 makes clear that a newborn testing positive for drugs “is not in and of itself a sufficient basis for reporting child abuse or neglect.” State law does require that every county develop protocols between county health and welfare departments, and all public and private hospitals in the county, for assessing the needs, and referring a substance exposed infant to child welfare. Los Angeles County is out of compliance with this law as it has yet to develop any such policy, although currently working with stakeholders to develop a policy. The policy should clarify that pregnant women and newborns should not be drug tested in health care settings unless medically indicated and consented to by the pregnant person.
OTHER JURISDICTIONS ARE EXPLORING LIMITS ON DRUG TESTING
Senate Bill 4821, pending in New York State, prohibits drug and alcohol testing of pregnant and perinatal people and newborns without informed consent. The bill prevents any health care worker from performing a drug or alcohol test or screen on a pregnant person unless the person gives written and verbal consent to the test and the test is within the scope of medical care being provided to such pregnant person. Similarly, health care providers cannot drug or alcohol test or screen a newborn unless the person authorized to consent to their medical treatment gives written and verbal consent. The bill permits health care providers to test without consent if necessary for medical treatment and delaying treatment to obtain consent would increase the risk to the person’s life or health.
PROPOSAL FOR LOS ANGELES COUNTY
Los Angeles County should prohibit health care facilities from drug testing pregnant people and their newborns, except in limited circumstances where it is medically indicated and informed consent is provided by the pregnant person or the parent/guardian of the newborn, or when done in the context of clinical treatment for substance use. The provider must document the reason for the test. A refusal to give consent to a drug test shall not be the basis of a referral to child protective services. Hospitals shall make public each month the number of pregnant people and the number of infants they test for substances, the demographics of those persons, and any reports required under CAPTA. Hospitals shall analyze the data to identify any trends relating to race/ethnicity and/or socio-economic status that result in biases in which patients hospital staff target for drug testing. Hospital staff shall receive training annually on Los Angeles’ Safe Care Plan, Penal Code section 11165.13, and supporting substance-using pregnant people. Consistent with California Health and Safety Code section 123630.3, the training shall cover implicit bias in drug testing decisions. Hospitals should employ staff that reflect the communities they serve, in order to reduce bias in how patients are treated and tested.
1. Movement for Family Power, et al, Family Separation in the Medical Setting: The Need for Informed Consent (2019) at 4; Mishka Terplan and Howard Minkoff, Neonatal abstinence syndrome and ethical approaches to the identification of pregnant women who use drugs, 129 Obstet Gynecol 164 (2017).
2. American College of Obstetrics and Gynecologists, Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period (2020) at https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period
3. Hillary Veda Kunnis, Eran Bellin, Cynthia Chazotte, Evelyn Du, and Julia Hope Arnsten, The Effect of Race on Provider Decisions to Test for Illicit Drug Use in the Peripartum Setting, Journal of Women’s Health, 2010 April 24.
4. Emma S. Ketteringham, Sarah Cremer & Caitlin Becker, Healthy Mothers, Healthy Babies: A Reproductive Justice Response to the "Womb-to-Foster-Care Pipeline," 20 CUNY L. Rev. 77 (2016).
5. The American College of Obstetrics and Gynecologists, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist,” Jan. 2011.
6. Meenakshi Subbaraman & Sarah Roberts, Costs associated with policies regarding alcohol use during pregnancy: Results from 1972-2105 Vital Statistics, PLOS One (2019) 1; Sara Roberts, Terri-Ann Thompson, & Kimá Joy Taylor, Dismantling the legacy of failed policy approaches to pregnant people’s use of alcohol and drugs, International Review of Psychiatry (2021) 502.
7. American College of Obstetrics and Gynecologists, Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period (2020) at https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period
8. American College of Obstetrics and Gynecologists, Refusal of medically recommended treatment during pregnancy,” Committee Opinion No. 664 (2016) at https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2016/06/refusal-of-medically-recommended-treatment-during-pregnancy
9. Ecker et. al., Substance use disorders in pregnancy: clinical, ethical, and research imperatives of the opioid epidemic: a report of a joint workshop of the Society for Maternal-Fetal Medicine, American College of Obstetrics and Gynecologists, and American Society of Addiction Medicine, 221 Amer. J. of Obstetrics and Gynecology (2019) B5, B6 at https://www.ajog.org/article/S0002-9378(19)30500-9/fulltext. Experts note the difference between screening for substance abuse (using questionnaires) and biologic testing, and discourage the use of biologic testing except in limited circumstances. Id.
10. 42 U.S.C. § 5106a(b)(2)(B))(iii). Note: California law defines “infants affected by substance use” narrowly as “an infant where substance exposure is indicated at birth, and subsequent assessment identifies indicators of risk that may affect the infant’s health and safety.” ACL 17-92.