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Arianna Fishman, afishman@nyclu.org, 212-607-3372; Dana Sussman, media@advocatesforpregnantwomen.org, 646-854-1454

December 17, 2021

Advocates call for end to discriminatory nonconsensual drug testing of pregnant people  

ORANGE COUNTY – The New York Civil Liberties Union and National Advocates for Pregnant Women (NAPW) filed state Division of Human Rights (DHR) complaints on behalf of Crystal H. and Jane Doe, respectively, who were drug tested without consent when giving birth at Garnet Health Medical Center in Middletown, New York. Both Crystal and Jane received false positive drug test results due to having recently eaten foods containing poppy seeds, and later tested negative, as did their newborns. Garnet Health discriminated against both mothers on the basis of sex and pregnancy by non-consensually drug testing them, interfering with both mothers’ ability to breastfeed, and referring the families to the State Central Register of Child Abuse and Maltreatment (SCR), which resulted in invasive searches of their homes by local child welfare authorities.

“Garnet Health turned the joy of becoming a new mom into an absolute nightmare. Right after delivery, hospital staff didn’t permit me to nurse because of a false positive drug test result after having eaten a poppy seed bagel. Those bonding moments with my newborn are moments I will never get back,” said Crystal H. “Across New York State, low income, and Black and Latinx pregnant New Yorkers are threatened with family separation and discriminated against by their healthcare providers based on accusations of drug use alone. I’m taking action today to ensure that our hospitals’ care for newborns and their parents is grounded in principles of public health, not racist stereotypes.”

"By drug testing me without my consent and reporting a false presumptive positive result to child welfare authorities, Garnet Health turned what should have been the most meaningful moment of my life into the most traumatic one. All because I ate a salad with poppy seed dressing, Garnet Health treated me like an unfit mother, told me I wasn't allowed to breastfeed, repeatedly denied my requests for a confirmatory test, and ensured my name would be on the New York State Central Register of Child Abuse and Maltreatment. At a time when I should be focused on bonding with the baby I have been dreaming of my whole life, I have been forced to grapple with the heartbreaking effects of Garnet Health's discriminatory actions,” said Jane Doe.

Pregnant people in New York are often subjected to medically unnecessary and discriminatory drug testing without their consent. Contrary to racist myths perpetuated by the War on Drugs, drug testing pregnant people is not grounded in medical science and can cause extreme harm. A positive toxicology result can cause a report or referral to Child Protective Services (CPS), family separation, enlistment on the SCR, loss of housing and employment, and can deter pregnant people from seeking vital perinatal medical care. The American College of Obstetricians and Gynecologists has warned of the dangerous public health consequences of reporting pregnant women and new mothers for substance use when they seek perinatal care, and rejects practices that screen pregnant people for substance use via nonconsensual drug testing.

“No parent should ever endure what Crystal and her husband endured,” said Gabriella Larios, Equal Justice Works fellow at the New York Civil Liberties Union. “Nonconsensual drug tests prioritize stigma over science and are a relic of racist War on Drugs myths. Garnet Health, and all hospitals across New York State, must immediately stop drug testing pregnant people in secret, and Albany must pass legislation so that no drug test can take place without a pregnant person’s informed consent.”

"Garnet Health's practice of drug testing all pregnant patients without their informed consent and reporting test results to child welfare authorities has devastating consequences for new families and constitutes illegal sex discrimination,” said Emma Roth, attorney at National Advocates for Pregnant Women. “We're filing the complaint to shine a light on Garnet Health's discriminatory practices and we hope other hospitals take notice. No new mother should ever face such traumatic and discriminatory treatment."

Drug testing pregnant people is a form of medical racism. This practice arose out of the failed War on Drugs, which advanced a narrative that cast suspicion on people of color and resulted in federal laws to ostensibly provide drug treatment to pregnant women. Instead, these laws increased testing, stigma, and reports to CPS that furthered racist tropes and the scrutiny of Black and Latinx mothers.

Women of color suffer from disproportionately high rates of maternal mortality and family separation. Medically unnecessary drug testing without informed consent is a driver of these inequities. The NYCLU, NAPW, criminal legal system reform partners, and reproductive justice advocates are calling on state lawmakers to pass legislation that would require informed consent prior to drug testing pregnant New Yorkers.

Outside New York, nonconsensual drug tests have been the subject of litigation on behalf of pregnant people in Pennsylvania, resulting in policy changes and monetary damages to parents. In the complaints, Crystal and Jane demand that the DHR declare nonconsensual drug testing of pregnant people discrimination on the basis of sex and pregnancy; award monetary damages to their families; order Garnet Health to establish policies, procedures, and training relating to informed consent and pregnancy discrimination; issue written apologies; and order corrections of their medical records.

In addition to Larios, NYCLU counsel includes staff attorney JP Perry, assistant policy director Katharine Bodde and Equal Justice Works fellow Jenna Lauter (admission to the New York Bar pending).

Read Jane’s complaint here.

Read Crystal’s complaint below.