In a First, NYS Division of Human Rights Rules Nonconsensual Drug Testing of Pregnant Mother is Discrimination

NEW YORK – The New York Civil Liberties Union announced a first-of-its kind victory in its state Division of Human Rights (DHR) complaint on behalf of Crystal H. who was drug tested without consent when giving birth at Garnet Health Medical Center in Middletown, New York. The decision announced today sustains Crystal’s sex and pregnancy discrimination claim and requires that Garnet cease its discriminatory practices, train its employees, and pay fines and civil penalties to the state.

“Garnet Health Medical Center robbed me of the joy of becoming a new mom. They drug tested me without my knowledge, and due to a false positive drug test, reported me to CPS. This nightmare led to months of devastation for my family and stolen bonding moments with my child,” said Crystal H. “I’m heartened that with this decision, our state must ensure that our hospitals’ care for newborns and their parents is grounded in principles of public health, not stereotypes.”

Pregnant patients 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 medically beneficial or recommended and can cause extreme harm. Positive toxicology results are often reported to Child Protective Services (CPS), which can trigger invasive investigations and even traumatic separation of infants from their families—all at a time when postpartum people should be recovering from birth and bonding with their newborns. This can also lead to enlistment on the state child abuse and neglect registry and jeopardize parents’ housing and employment.

Critically, non-consensual drug testing violates pregnant people’s trust in the health care system and can deter them 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 condemns practices that screen pregnant people for substance use via nonconsensual drug testing.

“Nonconsensual drug tests prioritize stigma over science and are a relic of War on Drugs myths. No parent should ever endure what Crystal endured,” said Gabriella Larios, staff attorney at the New York Civil Liberties Union. “With this decision, Garnet Health must immediately stop drug testing pregnant people in secret. Now, Albany must pass legislation so that no drug test can take place without a pregnant person’s informed consent.”

Drug testing pregnant patients 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 Latina 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, criminal legal system reform partners, and reproductive justice advocates are calling on state lawmakers to urgently pass legislation that would require informed consent prior to drug testing pregnant New Yorkers.

In addition to Larios, NYCLU counsel includes senior staff attorney JP Perry, legal director Molly Biklen, interim policy co-director Katharine Bodde and policy counsel Jenna Lauter.

For more information, see here and here.