Criminalization of Care: Drug Testing Pregnant Patients

Abstract

This article reveals how law and legal interests transform medicine. Drawing on qualitative interviews with medical professionals, this study shows how providers mobilize law and engage in investigatory work as they deliver care. Using the case of drug testing pregnant patients, I examine three mechanisms by which medico-legal hybridity occurs in clinical settings. The first mechanism, clinicalization, describes how forensic tools and methods are cast in clinical terminology, effectively cloaking their forensic intent. In the second, medical professionals informally rank the riskiness of illicit substances using both medical and criminal-legal assessments. The third mechanism describes how gender, race, and class inform forensic decision-making and criminal suspicion in maternal health. The findings show that by straddling both medical and legal domains, medicine conforms to the standards and norms of neither institution while also suspending meaningful rights for patients seeking care.

State of Confusion: Ohio’s Restrictive Abortion Landscape and the Production of Uncertainty in Reproductive Health Care

“…The relationship between medicine and the law in different care contexts will be important to examine. A recent study on drug testing during pregnancy identified how medical practice became a form of criminalization and mode of governance (McCabe 2022). In our study, criminalization of health care providers was a greater concern given current state legislation.…”

The Impact of Social Vulnerability on Substance Use Detection Practices in Pregnancy

“…38 In the other study, McCabe found that providers reported "signs of poverty" as being an indication for detection among their patients. 33 Finally, one study found no differences in the receipt of uTox testing based on patient income. 42 None of the studies discussed housing cost burden, a SDoH characteristic the CDC suggests should be considered when assessing socioeconomic status.…”

“…status, which includes the SDoH characteristics of employment status, income, insurance, and level of education. [32][33][34][35][36][37][38][39][40][41][42] Eight of these articles found associations between substance use detection and insurance status. 32,[34][35][36][37][39][40][41] Six articles found that having public insurance was associated with increased receipt of uTox or screening.…”

“…39 Five studies discussed disparities based on other SDoH characteristics associated with socioeconomic status including level of education, employment status, and income. 33,[36][37][38]42 Winchester et al assessed employment status and found a significantly higher proportion of individuals who received uTox were unemployed compared with patients who were employed. 37 Toquinto et al assessed disparities associated with level of education and found individuals with a high school or higher education were more willing to disclose substance use to their provider than individuals who had less than a high school education.…”

“…36 And finally, two articles highlighted detection disparities based on income. 33,38 In one of the studies, Young-Wolff et al found individuals living in neighborhoods with lower median incomes were more likely to not self-report substance use compared with individuals living in neighborhoods with higher median incomes, despite testing positive for substances through uTox. 38 In the other study, McCabe found that providers reported "signs of poverty" as being an indication for detection among their patients.…”