Before Kate L. gave birth to a baby girl last September, a nurse at New Jersey's Hackensack University Medical Center collected a urine sample from the soon-to-be mother. Kate thought nothing of it, because she was accustomed to having her urine tested for protein levels during her pregnancy. She had no idea that her urine would be tested for drugs, which resulted in a terrifying, monthslong investigation aimed at determining if she was a fit mother.
Kaitlin K. had a similar experience when she gave birth to a baby boy at Virtua Voorhees Hospital in Camden County, New Jersey, the following month. The immediate culprit in both cases seems to have been a poppy seed bagel that triggered a false positive for opiates. That, in turn, led to state investigations of alleged child neglect. But the real blame, according to complaints filed this month by the American Civil Liberties Union (ACLU) of New Jersey, lies with the hospitals, which it says conducted nonconsensual, medically unnecessary, and woefully inadequate drug tests, then reported the erroneous results to the New Jersey Department of Child Protection and Permanency (DCPP).
The ACLU, which is asking the New Jersey Department of Law and Public Safety's Division on Civil Rights to stop that practice and award compensatory damages, argues that a policy of "drug testing perinatal patients on the basis of sex and pregnancy" constitutes illegal discrimination under state law. Whatever the legal merits of that claim, the sneaky, arbitrary, high-handed, and cruel treatment described in the complaints shows what can happen when medical personnel forsake their ethical responsibilities in service of the war on drugs.
"No one should be subjected to unnecessary and nonconsensual drug tests," says ACLU of New Jersey staff attorney Molly Linhorst. "Our clients are sending a clear message to hospitals that these testing and reporting policies are unacceptable. Discriminatory testing policies like these upend what should be a time of joy for families, and so often subject them to further trauma and unwarranted investigation by the state."
The message that the ACLU is trying to send should have been received long ago. Given the history of false positives caused by poppy seed consumption and litigation involving precisely the circumstances described in the ACLU complaints, it is astonishing that hospitals continue to treat new mothers as presumptively unfit based on nothing more than the results of fallible urine tests conducted without permission or medical justification.
The hospitals cannot plausibly claim they did not realize poppy seeds could trigger those tests. "Concerns with poppy seeds and drug testing are not new," the Department of Defense notes in a memo it issued last month. It has long been recognized that poppy seeds "may be contaminated during harvest with morphine and codeine," the Defense Department says, and "recent data suggests certain poppy seeds varieties may have higher codeine contamination than previously reported." The memo advises service members to steer clear of foods containing poppy seeds, "which could cause a codeine positive urinalysis result and undermine the Department's ability to identify illicit drug use."
To guard against false positives, the Mandatory Guidelines for Federal Workplace Drug Testing Programs, published in 2017, require a codeine cutoff of 2,000 nanograms per milliliter of urine. But the Hackensack University Medical Center's lab, according to Kate's complaint, used a cutoff of 300 ng/ml, less than one-sixth the federal standard. Virtua Voorhees Hospital's lab, according to Kaitlin's complaint, used a cutoff of just 10 ng/ml, 99.5 percent lower than the recommended level.
The specific problem of pregnant women falsely identified as illegal drug users by hospital urine tests likewise has been widely recognized for years. Women who suffered ordeals similar to those described by Kate and Kaitlin recently have sued hospitals in Pennsylvania (2020), New York (2021), and Illinois (2022).
One such lawsuit, filed 13 years ago, resulted in a $143,500 settlement with a hospital and child welfare agency in Pennsylvania. It was followed the next year by another lawsuit involving the same hospital and the same agency, which led to a $160,000 settlement.
Reason reported similar cases in Maryland, Pennsylvania, and Alabama in 2018, 2019, and 2020, respectively. In 2020, the U.S. Court of Appeals for the 6th Circuit ruled that Kentucky caseworkers violated the Fourth Amendment when they conducted interviews and imposed a "prevention plan" on new parents in response to a false-positive urine test.
The American College of Obstetricians and Gynecologists opposes drug testing of perinatal patients. It notes that "a positive drug test result is not in itself diagnostic of opioid use disorder or its severity." It adds that "false-positive test results can occur," and "legal consequences can be devastating to the patient and her family."
In short, the hospitals that treated Kate and Kaitlin had plenty of notice that their policies and practices were problematic. They nevertheless conducted drug tests surreptitiously with no medical basis and used recklessly low cutoffs. In Kate's case, the hospital failed to confirm the test results, ignoring guidelines that the U.S. Department of Health and Human Services published in 2018. "Not completing confirmatory urine testing can be disastrous," the guidelines warn, "because it can result in false-positive results that may mean the loss of custody of children and, in some states, legal prosecution."
Unlike some of the plaintiffs in earlier lawsuits, Kate and Kaitlin did not lose custody of their children. But that possibility resulted in months of anxiety and anguish as the DCPP completed its investigations, which included home visits and, in Kaitlin's case, three interrogations of her 7-year-old son. Both women still worry that records of the drug test results and the ensuing investigations will result in unjustified suspicions that could separate them from their children.
"I felt like the doctors were questioning my character and parenting skills," Kate says. "I'm terrified of ever going to a hospital again; I'm always going to worry that our family could be torn apart. That's why we are doing all we can to stop this from happening to anyone else."
Kaitlin's experience likewise has left a lingering mark. "I feel violated," she says. "This whole ordeal has been extremely stressful and has turned our lives upside down and now, because of what happened, I live in fear of medical tests and how they might be used against me as a mother."
The situation that Kate encountered seemed designed to destroy patients' confidence in the medical system. Her urine test came up positive for opiates on September 20, but she was not informed of that result until four days later. Meanwhile, her baby, identified as A.L. in her complaint, was kept in the neonatal intensive care unit (NICU) for reasons that were not clear. The hospital secretly did a second drug test on Kate's breast milk, which came up negative. According to her complaint, the baby "never showed signs of withdrawal and was never diagnosed with neonatal opioid withdrawal syndrome or neonatal abstinence syndrome."
The day after Kate learned that she was suspected of using opioids—five days after she gave birth—the hospital "refused to discharge" her, the complaint says. That afternoon, DCPP caseworkers separately interrogated Kate and her husband, Jesse. Kate agreed to a second urine test, which came up negative. She was finally released that evening, but her baby did not come home until October 1, "ten days after her birth and five days after DCPP cleared Kate to bring her baby home."
Why the delay? "One of the doctors working in the NICU stated to Kate and Jesse that she would need to feel 'comfortable' before permitting Kate to take A.L. home," the complaint says. "Kate felt that the doctor was judging her as a mother and insinuating that she was not trustworthy."
Meanwhile, DCPP caseworkers visited Kate and Jesse's home on September 26 to "conduct an inspection." That encounter "was extremely distressing for the new parents," the complaint says. "It was terrifying that a representative from the government was inspecting their home to determine whether they were fit to parent, despite months preparing for their baby to come home."
Although the DCPP "cleared Kate and Jesse to take baby A.L. home," the hospital kept the baby for another five days, and the agency's investigation continued. It included a "Certified Alcohol and Drug Counseling evaluation" and yet another urine test, which was "negative for all substances." In November, Kate received a letter saying the DCPP had concluded that "the allegation of neglect was 'unfounded.'" But the letter also said the agency would "retain the family's file for at least three years, leaving Kate and Jesse anxious that DCPP will again subject them to an invasive investigation and family separation without any valid basis."
As a result of this ordeal, the complaint says, "Kate has lost all confidence in medical professionals and feels she cannot trust any doctors. She fears that the initial positive test result will be part of her permanent electronic medical record, as well as her baby's medical record, and cause all subsequent doctors who view it to distrust her as a patient and as a mother."
Although Kate and Jesse had planned to have another child, "she is terrified of returning to a hospital for any medical procedure, especially labor and delivery." She "is so distressed by her experience that she is frightened to give birth again." She "does not trust hospitals or OB/GYN physicians with her information or with her health."
The hospitals have declined to comment on the complaints. A Virtua spokesperson said the company is "dedicated to providing safe, comprehensive, and equitable care to the community" and "fully committed to reviewing this matter."
Like the scandalous abandonment of pain patients that resulted from the government's crackdown on prescription opioids, these cases illustrate how the war on drugs corrupts everything it touches. It encourages doctors to sacrifice patients' welfare in the name of fighting substance abuse, shatters relationships on which people rely for health care, and even threatens to sever the supposedly sacred bond between mother and child.
The hospitals that treated Kate L. and Kaitlin K. like criminals instead of patients are not responsible for those incentives. But they are responsible for their blind embrace of the anti-drug agenda, which may end up costing them. They could have avoided that potential liability if they had been paying attention to a problem that has been obvious for more than a decade.
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