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Last week, New Jersey became the first state in the nation to file suit against a hospital for drug testing patients who give birth.
The lawsuit, filed by Attorney General Matthew Platkin, accused hospital network Virtua Health of discriminating against pregnant patients by requiring them to undergo drug tests and automatically reporting positive results to child welfare authorities.
Virtua has a policy of drug testing every patient who comes in to give birth, according to the agency’s investigation. No other group of patients at Virtua is subjected to mandatory drug testing and reporting, the lawsuit said.
“In parts of our country, the rights of pregnant individuals are being eroded,” Platkin said in a statement. “... Whether it means preserving the right to reproductive freedom or ensuring that a pregnant person doesn’t undergo tests or procedures without their knowledge and consent, we will defend our residents’ rights.”
A spokesperson for Virtua said the network doesn’t comment on ongoing lawsuits, but said, “We hold the safety and well-being of each patient paramount, 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 Division on Civil Rights. The agency’s investigation found that Virtua’s policies have led to a disproportionate number of child welfare reports. While 9.4% of hospitalizations for deliveries in the state in 2022 took place in Virtua hospitals, the network accounted for almost a quarter of all reports filed. The state also said that hospital staff regularly failed to obtain informed consent from patients before drug testing them, even though consent is required by Virtua’s own policies, and under New Jersey law.
As a result of Virtua’s drug testing policies, the hospital reported two women to child protective services over positive drug test results caused by bagels with poppy seeds, according to the lawsuit. A recent investigation by The Marshall Project and Reveal found that many hospitals across the country routinely screen pregnant patients using urine drug tests that have false positive rates as high as 50%. Hospitals often report these test results to authorities without performing confirmation tests, 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 over likely false positive results due to a variety of common foods and medicines, from poppy seed bagels to Zantac, the heartburn medication.
A similar probe by the attorney general of New York is also underway, after two patients filed civil rights complaints in 2021 alleging discriminatory practices at New York-based hospital network Garnet Health. Garnet denied wrongdoing and said the state’s investigation “appears to be motivated by political interests.” After Garnet Health refused to turn over subpoenaed records, a judge found the hospital guilty of civil contempt. The case continues, and the state’s Attorney General’s Office has since expanded its probe to additional hospitals in New York.
These administrative complaints reflect a new legal strategy for civil rights groups, which have long pushed for changes to hospital drug-testing policies. A lawsuit filed in 1993 in South Carolina challenged the practices on behalf of women who were tested at a public hospital, reported to the police and jailed. The case, Ferguson v. City of Charleston, made it all the way to the U.S. Supreme Court. In 2001, the justices ruled that public hospitals cannot drug test pregnant women for the purpose of reporting to law enforcement without consent — in what was hailed as a victory among civil rights groups.
“It’s a very, very important decision in protecting the right to privacy of all Americans,” said Priscilla Smith, one of the lawyers for the women at the time. “It reaffirms that pregnant women have that same right to a confidential relationship with their doctors.”
But since then, amid the opioid epidemic, drug testing and reporting programs at hospitals have only expanded, experts said. Other women have filed lawsuits arguing similar privacy violations, with mixed success. Concerns about the conservative makeup of the federal judiciary and many state courts led civil rights attorneys to seek out a new legal strategy. They began pursuing discrimination cases at the state level, rather than building on the Ferguson ruling.
“We’ve long considered bringing a Ferguson-type case in Alabama, but the realities of litigating in the 11th Circuit and going up to our current Supreme Court, it’s just dangerous,” said Emma Roth, a senior staff attorney at Pregnancy Justice, an advocacy group that filed one of the New York complaints.
Lawyers hope the cases will not only prompt hospitals to change their policies, but lead to a broader recognition — at both the state and federal levels — of nonconsensual drug testing as a violation of civil rights.
Virtua began drug testing every birthing patient in 2018, after hospital staff reported seeing an increase in the number of newborns exhibiting withdrawal symptoms from exposure to opioids, according to the New Jersey lawsuit.
At the same time, Virtua’s policy requires employees to report every positive test result, no matter the cause of the result, the complaint said. That’s likely because under New Jersey law, and in many states, hospitals are required to report a positive screen to child welfare authorities, even if the results have not been confirmed with a more definitive test.
Virtua orders confirmation tests on its drug screens, but — as The Marshall Project reported — most confirmation tests do not differentiate between a positive for opiates due to an illicit substance, and a false positive due to consuming poppy seeds. Confirmation testing is also unable to differentiate between other legal substances, leading to women being reported over legally prescribed medications.
Because of these and other problems caused by drug testing, some hospitals have started shifting their policies. Leading medical groups, including the American Medical Association and the World Health Organization, all recommend verbal screening and questionnaires over universal drug testing.
Since the ACLU of New Jersey first filed its complaint, the organization said, it has been contacted by more than 30 other women who were reported to authorities over false positive or incorrectly interpreted drug test results, signaling just how common this problem has become.
“It’s pretty devastating to see so many people come forward,” said Molly Linhorst, a staff attorney at the organization. “I like to tell them all, they are not alone in this. There’s so many other women who’ve had this experience. So please do not feel like you’re alone.”
