In 2018, Shakira Kennedy, a 28-year-old Black woman, disclosed to her doctor that she had been using marijuana to help with her extreme morning sickness. She had lost over 50 pounds during her pregnancy, and none of the anti-nausea medications prescribed by her doctor helped.
After giving birth at a public hospital in New York City, Kennedy and her newborn twins were drug tested without her consent. Despite the newborns’ negative result, the hospital staff reported Kennedy to the Administration for Children’s Services, leading to a 60-day investigation of child neglect. Kennedy was forced to attend a drug rehabilitation program for an addiction she did not have, in order to prevent her family from being torn apart.
The nightmare that Kennedy endured is not unique. In fact, the practice of drug testing Black mothers without their consent dates to the 1980s, when a fake epidemic of “crack babies” led to a flurry of punitive policies designed to closely police the behavior of pregnant women. The risks of prenatal crack cocaine exposure were sensationalized by national media, while exposure to other substances like alcohol were largely ignored.
The focus on crack cocaine inevitably led to racial disparities in testing and reporting that persist today. According to a 2010 University of Rochester Medical Center study, Black newborns admitted to the NICU are more likely to be screened for illicit drug use than their white counterparts, despite being less likely to test positive. Furthermore, a California studyfound that Black women are five times more likely than white women to be reported to Child Protective Services for prenatal drug use, even if the hospital has standardized reporting protocols.
In the U.S., 25 states require health professionals to report cases of prenatal drug use to CPS. Substance use during pregnancy is considered child abuse in 23 states and the District of Columbia, with three considering it grounds for civil commitment. CPS involvement in these cases can lead to arrest, imprisonment, loss of custody, and compulsory enrollment in rehabilitation programs.
In addition to severe legal consequences that disproportionately target low-income Black families, punitive drug enforcement policies discourage pregnant patients from seeking prenatal care, increasing the risk of neonatal abstinence syndrome. Patients with an untreated substance use disorder may die from a drug overdose, which has become a leading cause of maternal mortality. For mothers like Shakira Kennedy who do not have a drug addiction, a CPS referral may lead to an unnecessary removal that traumatizes the family.
Drug testing mothers and newborns without their consent is a destructive practice that must end. Currently, a state Senate bill that aims to address these concerns sits in committee. Bill S7955 not only requires written consent from the patient before a drug test is performed, but also prohibits medical professionals from using test results for purposes not related to treatment or diagnosis.
Support for this bill is support for better health outcomes for mothers and newborns. Instead of punishing families for prenatal drug use, health care providers should focus on making sure patients receive the care that they need.
Yubin Oh is a junior studying political science and health policy at the University of Rochester.