Reproductive justice advocates have long warned that the medical and family policing systems sometimes collude. This results in people who have abortions or miscarriages being investigated and punished by state authorities, like law enforcement or child welfare services. According to a new investigation by the Marshall Project, hospitals across the country are reporting pregnant people to said authorities… for testing positive for medications that the hospitals gave them. The report details several examples, and stresses that these cases are “far from isolated incidents.”
In one heart-rending case, in 2023, a Texas woman named Amairani Salinas was 32 weeks pregnant when she needed an emergency c-section because her fetus was stillborn. As the hospital prepared the mother of three for her procedure, they gave her midazolam, which is a benzodiazepine commonly prescribed to keep patients calm. The following day, while Salinas held her stillborn baby, a social worker told her she was being reported to welfare authorities because a drug test revealed traces of benzodiazepine. Consequently, the state conducted an invasive, four-month investigation into Salinas, all while the report notes that she was still “trying to fight off paralyzing depression while processing her grief and caring for her other children.” Salinas questioned why child welfare authorities are “giving your attention to this person who’s a good mom, who hasn’t done anything, instead of a child who may actually be in danger?”
In another case, an Indiana woman named Victoria Villanueva had her labor induced at 41 weeks. Doctors provided her with narcotics to ease the pain of contractions. But the following day, a social worker told Villanueva that her baby’s meconium — the first bowel movement — tested positive for opiates, prompting the Indiana Department of Child Services to open a similar investigation into her. Villanueva was cleared, but she told the outlet she struggled to enjoy new motherhood while fearing she could lose her baby at any moment.
The Marshall Project also cited the case of an Oklahoma mother who tested positive for meth after giving birth. Her newborn and three other kids were put into foster care for 11 days until authorities realized it was due to the heartburn medication the hospital gave her. In New York, an unnamed mother lost custody of her toddler and newborn after testing positive for fentanyl, because the epidural the hospital gave her had traces of the drug. One 2022 study found 91% of women given fentanyl in their epidurals later tested positive for it.
The report gives further, chilling examples of just how easily pregnant or postpartum people can find themselves under investigation by the state, or even lose custody of their children over mere misunderstandings:
Medications such as morphine or fentanyl have led some patients to get flagged as opioid users. Ephedrine and phenylephrine, medications for low blood pressure that are commonly prescribed during C-sections, have caused false positives for meth. The Marshall Project also found that women were questioned over positive drug tests after hospitals gave them sedatives such as benzodiazepines or barbiturates.
Hospitals across the country have different standards around prenatal and postpartum drug testing. The Marshall Project notes that hospital drug testing of pregnant people largely began in the 1980s, around the height of the racist, classist War on Drugs. Dr. Tricia Wright, an OB-GYN and professor at the University of California, San Francisco Medical Center who specializes in substance use disorders in pregnancy, told the outlet that medical schools and residency programs don’t traditionally teach how health care professionals should navigate pregnancy and substance use.
Per the report, at least 27 states require hospitals to alert child welfare agencies about pregnant people’s positive drug tests or potential drug exposure in babies, but none of these states require the hospitals to confirm the veracity of tests before reporting patients. Leading medical groups have advocated for hospitals to use questionnaires instead of drug tests for more accurate results. Earlier this year, the Marshall Project reported that hospitals across the country are using inaccurate pee-in-a-cup drug tests resulting in pregnant people and new mothers losing custody or facing criminal investigation over false positives — including for eating poppyseed.
We need to talk about mandatory reporting.
Our research shows that in 45% of the 61 cases we found, care providers reported people to the police.
Know the law and help protect patients from criminalization: https://t.co/wMSeaSeMq2
Request a training: https://t.co/nVaQboGWyo https://t.co/Dxq0VPRpSw
— If/When/How: Lawyering for Reproductive Justice (@ifwhenhow) December 12, 2024
"No one should have to fear state violence and family separation when seeking medical care," Lauren Paulk, senior research counsel at If/When/How, told Jezebel. "Instead of being given time to bond with their children, people are facing interrogations, investigations, and child removal following giving birth." Since the Supreme Court overturned Roe v. Wade, Paulk warned that “surveillance and criminalization of pregnant people has increased fear around seeking needed medical care.”
In response to the Marshall Project’s investigation, If/When/How raised that many health care professionals incorrectly believe that mandatory reporting laws require them to report pregnant patients to police or state authorities. The organization shared state-by-state factsheets they’ve prepared about medical workers’ actual obligations — which don’t include calling state authorities on pregnant people. “Whether a test is positive because of a drug given in the hospital, or because someone is struggling with substance use, criminalization is not the answer," Paulk said. "People need care, not cops."
