Drug Screening and Criminal Prosecution of Pregnant Women

Abstract

According to the U.S. Supreme Court, the Fourth Amendment rights of 10 women were violated by a hospital that provided them prenatal care. The incidence of prenatal drug testing for criminal prosecution with or without a woman's knowledge is increasing. Concurrently, funding and availability of drug treatment programs for pregnant women are declining. Nurses and physicians who act as advocates for the state rather than the patient damage the patient-provider relationship and breach their ethical responsibility to the patient.

Maternal and Fetal Effects from Substance Use

“…Toxicology screening with informed consent is recommended among those pregnant women with: (1) self-reporting of substance use, (2) multiple characteristics suggesting substance use, to facilitate referral to a comprehensive care program, or (3) compliance requirements with treatment recommendations. Random testing of all gravidas raises several legal issues, including the right to privacy, lack of probable cause, and admissibility of test results [6].…”

Comments and Reflections on Ethics in Screening for Biomarkers of Prenatal Alcohol Exposure

“…Moreover, legal coercion may further jeopardize infant well-being and does not prevent substance abuse among women (Foley, 2002). In fact, it may cause more harm as the perceived coupling of the healthcare and criminal justice systems may lead women to avoid obtaining prenatal care (Abel and Kruger, 2002;Armstrong, 2005;Miller et al, 1994), which can lead to negative medical consequences (Foley, 2002). Criminal prosecution could also adversely affect the clinician-patient relationship (Zadunayski et al, 2006), which relies on open communication, confidentiality and trust, and discounts the involvement of the father.…”

“…Criminalization of maternal alcohol consumption threatens a woman's autonomy and the status of women as equal citizens who are entitled to protection under the law (Armstrong, 2005;Moss, 1990). Moreover, legal coercion may further jeopardize infant well-being and does not prevent substance abuse among women (Foley, 2002). In fact, it may cause more harm as the perceived coupling of the healthcare and criminal justice systems may lead women to avoid obtaining prenatal care (Abel and Kruger, 2002;Armstrong, 2005;Miller et al, 1994), which can lead to negative medical consequences (Foley, 2002).…”

A Prediction Model for Positive Infant Meconium and Urine Drug Tests

“…The issue of informed consent for maternal and infant drug testing has been raised both in the courts and in many institutions. 5 12 We applied our screening protocol to all patients, informed all patients of their positive screens, and explained the need for drug testing of both themselves and their infants. We believe our approach is reasonable since we test to guide referral of mothers for SUD treatment, for clinical decisions for infants at risk of withdrawal and to guide breastfeeding recommendations.…”

“…A solitary drug test documents current use but does not document presence of SUD and all drug testing should include informed consent. 5 12 Still, both maternal and infant drug tests are commonly completed to evaluate positive drug screenings and to document current use at the time of delivery. Drug tests may also be needed to satisfy legal considerations such as requirements for adoptions or when a referral to Child Protective Services (CPS) is made for any reason.…”