Drug testing of pregnant patients is discriminatory, the lawsuit says

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Last week, New Jersey became the first state in the country to file a lawsuit against a hospital hosting child birth drug testing patients.

The lawsuit filed by Attorney General Matthew Platkin accuses the hospital network Virtua Health of discriminating against pregnant patients by requiring them to undergo drug tests and automatically reporting positive results to child protective authorities.

According to the agency’s investigation, Virtua maintains a policy of drug testing every patient who comes in for delivery. The lawsuit states that no other patient group at Virtua is subject to mandatory drug testing and reporting requirements.

“In parts of our country, the rights of pregnant women are being eroded,” Platkin said in a statement. “…Whether it is protecting the right to reproductive freedom or ensuring that a pregnant person does not undergo tests or procedures without their knowledge and consent, we will defend the rights of our residents.”

A spokesperson for Virtua said the network does not comment on ongoing lawsuits, but said, “Our priority is the safety and well-being of every patient, especially our newborns.”

The lawsuit is the result of an administrative complaint filed in 2023 by the ACLU of New Jersey with the state’s Civil Rights Division. The agency’s investigation found that Virtua’s policies resulted in a disproportionate number of child welfare reports. While 9.4% of hospitalizations due to childbirth in the state in 2022 occurred at Virtua hospitals, the network accounted for nearly a quarter of all reports filed. The state also said hospital staff routinely failed to obtain informed consent from patients before conducting drug tests, even though consent was required under Virtua’s policy and New Jersey law.

Because of Virtua’s drug testing policies, the hospital reported two women to Child Protective Services for positive drug test results caused by bagels containing poppy seeds, the lawsuit says. A recent investigation by The Marshall Project and Reveal found that many hospitals across the country routinely screen pregnant patients using urine drug tests, with false positive rates as high as 50%. Hospitals often report these test results to authorities without conducting confirmatory testing, leading to investigations, forced separations, and sometimes the removal of newborns. The Marshall Project collected information on more than 50 mothers in 22 states who were reported and investigated for likely false positive results from a variety of common foods and medications, from poppy seed bagels to Zantac, the heartburn medication.

A similar investigation by New York’s attorney general is also underway after two patients filed civil rights complaints in 2021 alleging discriminatory practices at New York’s Garnet Health hospital network. Garnet denied wrongdoing and said the state’s investigation “appears to be motivated by political interests.” After Garnet Health refused to release the subpoenaed records, a judge found the hospital guilty of violating civil rights. The case continues and the state attorney general’s office has since expanded its investigation to other hospitals in New York.

These administrative complaints reflect a new legal strategy by civil rights groups that have long pushed for changes to hospital drug testing policies. A lawsuit filed in South Carolina in 1993 challenged the practices on behalf of women who were tested at a public hospital, reported to police and detained. The case, Ferguson v. City of Charleston, made its way to the U.S. Supreme Court. In 2001, judges ruled that public hospitals could not drug test pregnant women without consent in order to report them to law enforcement – which was hailed as a victory by civil rights groups.

“It is a very, very important decision to protect the right to privacy of all Americans,” said Priscilla Smith, one of the women’s lawyers at the time. “It reaffirms that pregnant women have the same right to a confidential relationship with their doctors.”

But since then, amid the opioid epidemic, hospital drug testing and reporting programs have only increased, experts say. Other women have filed lawsuits over similar privacy violations, with mixed success. Concerns about the conservative makeup of the federal judiciary and many state courts led civil rights lawyers to seek a new legal strategy. They began pursuing discrimination cases at the state level rather than building on the Ferguson ruling.

“We have long considered bringing a case like Ferguson in Alabama, but given the reality of litigating in the 11th Circuit and going all the way to our current Supreme Court, it is just dangerous,” said Emma Roth, a senior attorney at Pregnancy Justice. an advocacy group that filed one of the New York complaints.

Attorneys hope the cases will not only prompt hospitals to change their policies but also lead to broader recognition — at both the state and federal levels — of non-consensual drug testing as a violation of civil rights.

Virtua began drug testing every birthing patient in 2018 after hospital staff in New Jersey reported an increase in the number of newborns experiencing withdrawal symptoms due to exposure to opioids, according to the lawsuit.

At the same time, Virtua’s policy requires employees to report any positive test result, regardless of the cause of the result, the complaint says. That’s likely because New Jersey law and many states require hospitals to report a positive screen to child welfare authorities, even if the results have not been confirmed by a more definitive test.

Virtua orders confirmatory tests for its drug tests, but — as The Marshall Project reported — most confirmatory tests do not distinguish between a positive result for opiates due to an illegal substance and a false positive result due to poppy seed consumption. Confirmatory tests are also unable to distinguish between other legal substances, resulting in women being exposed to legally prescribed medications.

Because of these and other problems caused by drug testing, some hospitals have begun to change their policies. Leading medical groups, including the American Medical Association and the World Health Organization, all recommend oral tests and questionnaires over universal drug testing.

Since the ACLU of New Jersey first filed its complaint, it has been contacted by more than 30 other women who have reported false positive or misinterpreted drug test results to authorities, showing how common this problem has become.

“It’s pretty devastating to see so many people coming forward,” said Molly Linhorst, an employee advocate for the organization. “I like to tell them all that they are not alone in this. There are so many other women who have had this experience. So please don’t feel alone.”