Some states and hospital systems have updated their policies on drug testing for pregnant women and newborns, aiming to better support patients’ treatment and recovery from substance use disorder and combat racial disparities in testing and reporting.
Under federal law, medical professionals must notify child protective agencies when an infant has been affected by the mother’s substance use, including alcohol use. However, the federal rules — which were updated in 2016 in response to the opioid epidemic — emphasize that substance use disorder on its own doesn’t constitute child abuse, and require states to develop their own “plans of safe care” to promote the long-term health of the newborn and the mother.
But federal law doesn’t define “affected,” and testing and reporting policies vary from state to state and even from hospital to hospital. As the opioid crisis continues, some of the nation’s most prominent hospital systems and a handful of states have enacted or are considering less punitive approaches, as long as the baby is in no imminent danger.
One impetus for the shift is research showing that Black pregnant women are more likely to be drug tested and long-standing disparities in how Black and Indigenous families are treated by child welfare agencies. Mental health conditions and substance use have also emerged as leading causes of maternal death, according to the federal Centers for Disease Control and Prevention.
“The data about bias in child welfare reporting related to pregnant/birthing people’s substance use has been around for decades,” Sarah Roberts, a legal epidemiologist and professor at the University of California, San Francisco, wrote in an email to Stateline. Roberts tracks testing policies across the country.
What’s changed, Roberts said, is a growing awareness of the harms of over-testing and over-reporting to child welfare agencies.
Only two states, Minnesota and North Dakota, have laws that require drug testing of pregnant patients in certain circumstances, such as when there are complications during birth that point to the possible use of drugs or alcohol, according to an analysis by If/When/How, a reproductive justice nonprofit. And only four states (Louisiana, Minnesota, North Dakota and Wisconsin) mandate the drug testing of newborns in certain circumstances.
But hospitals and clinicians are often confused about their own state laws, said Joelle Puccio, director of education at the Academy of Perinatal Harm Reduction, which provides information to pregnant women and parents who use drugs.
“What actually happens is always more punitive, more surveillance than what is actually required by the law, and it always falls more heavily on Indigenous, Black and other families of color,” said Puccio, who has worked as a registered nurse in perinatal and neonatal intensive care for two decades.
Mass General Brigham in Boston, one of the most highly respected hospital systems in the country, announced changes to its perinatal reporting policy in April as part of a broader effort to eliminate practices that might “unwittingly perpetuate structural racism.”
Provided the baby isn’t in imminent danger, the hospital will now conduct toxicology testing only with written consent from the pregnant patient and will only report positive results to child welfare authorities if clinicians determine the baby is suffering or in imminent danger. Mass General Brigham also will move away from considering a baby’s exposure to drugs or alcohol — including a mother’s medication treatment for opioid use disorder — as automatic grounds for reporting abuse or neglect. This is to combat the stigma pregnant patients often report facing while on such medication treatment, leading them to fear health care settings.
“The single biggest deterrent for people engaging in care was the concern that if they went on buprenorphine or methadone, lifesaving treatment for their opioid use disorder, that they would have an open case with the Department of Children and Families,” said Dr. Davida Schiff, director of perinatal and family-based substance use disorder care at Mass General Brigham. “We know that buprenorphine and methadone reduce the risk of overdose.”
Dr. Allison Bryant Mantha, an OB-GYN and associate chief health equity officer at Mass General Brigham, said one priority of the policy change was to lessen room for bias.
“When you allow people to have a lot of their own discretion, that sometimes is where biases kind of creep in,” she said. “Sometimes minimizing variability gets you to equity.”
Legislation has been introduced in the Massachusetts Senate that aims to protect parents from scrutiny from child welfare authorities or criminal prosecution when their infant has been affected by in-utero substance exposure.
Other states already have approved such policies. Since 2019, Connecticut has directed health care providers to shield the identity of the parents when reporting a positive test to child welfare authorities, and to instead offer supportive services. That year, New Mexico also passed a law that removes substance use disorder from being considered abuse or neglect on its own.
And in 2020, Colorado updated its definition of child abuse and neglect to exclude cases in which a newborn tests positive for substance or alcohol exposure and the mother is on medication-assisted treatment.
But hospital staff still express confusion about state law, said Britt Westmoreland, a doula and addiction recovery specialist at the University of Colorado College of Nursing.
“I’ve had hospitals have policies that are more punitive than state law,” Westmoreland said, “and I have addressed that directly by educating them on what the state law is.”
Stateline is part of States Newsroom, a national nonprofit news organization focused on state policy.
