On Easter Sunday 2021, a pregnant woman in Illinois went to the emergency room. At 34 weeks pregnant, her blood pressure was too high. This was cause for concern because she had already been diagnosed with preeclampsia, a pregnancy complication characterized by high blood pressure, a few weeks prior. After being admitted to St. Alexius Medical Center, her blood was drawn and she provided a urine sample. What she didn’t know—and what she wasn’t told—was that providers were conducting a nonconsensual drug test.
To the patient’s surprise, the test came back positive. The woman suspected it was the result of what she ate as part of her and her husband’s traditional Polish Easter celebration—cake with poppy seed—and that’s what she told providers, who notified the state Department of Children and Family Services anyway.
Her experience is at the center of the latest case that involves the criminalization of pregnancy and birth.
On Friday, the National Advocates for Pregnant Women and the ACLU of Illinois filed a discrimination charge with the Illinois Department of Human Rights against the medical center. The complaint alleges St. Alexius discriminated on the basis of pregnancy and gender.
“Saint Alexius routinely drug tests perinatal patients without seeking their informed consent, despite the fact that they do not drug test any other class of patients—including fathers—and reports perinatal patients who receive positive test results” to the Illinois Department of Children and Family Services, the complaint reads. Leading medical organizations, including the American College of Obstetrics and Gynecology, widely oppose drug testing pregnant patients absent a clear indication that one is necessary. These tests also largely impact marginalized communities, as NAPW told Rewire News Group.
“Despite the fact that people of all races use drugs at similar rates, hospitals disproportionately test and report pregnant and postpartum patients of color,” NAPW staff attorney Emma Roth told Rewire News Group. “One study in which urine toxicology tests were collected over a six-month period found that despite similar rates of substance use among Black patients and white patients, Black women were reported to social services at approximately ten times the rate of white women.”
These cases exist at the intersection of a number of harmful policies. They use a “vulnerable moment in an attempt to enforce old bigoted and often racist tropes that led to and perpetuate the War on Drugs,” Emily Hirsch, staff attorney with the Women’s and Reproductive Rights Project at ACLU of Illinois, said.
According to documents shared with Rewire News Group, providers at St. Alexius in Hoffman Estates, a suburb of northwest Chicago, whispered to one another in the delivery room about the patient’s suspected opioid use. Identified as Ms. F. in documents, the patient delivered her baby via cesarean section two days later. The boy was born prematurely, but otherwise healthy, and so Ms. F. was confused and upset when the newborn was whisked off to the NICU moments after birth.
Ms. F. was discharged on April 10, but her newborn remained in the NICU. Two days later, she found out she was being reported to the Department of Children and Family Services. During a visit to the NICU, a social worker had questioned Ms. F. about her suspected drug and alcohol use; the social worker instructed her to “undress her baby to check for marks and bruises, and took photographs of him,” according to documents. Ms. F. was horrified.
Days later, another social worker arrived at her home, and told Ms. F. that she would be getting a “safety plan”—unless she found a third party to stay with her and her husband around the clock, her baby would not be discharged from the NICU. With all their family living back in their native Poland, the couple arranged for a family friend who they’d never met to stay with them.
The experience was invasive, dehumanizing, and cruel—and as advocates at NAPW told Rewire News Group, it is also increasingly common. NAPW and the New York Civil Liberties Union filed two similar complaints over the treatment women received at a Middletown, New York, hospital.
These cases fit squarely in a larger trend of criminalizing pregnancy, birth, and adverse pregnancy outcomes, as positive drug tests are often used to criminalize miscarriages. And laws like these have long-term consequences.
“Nonconsensual drug testing and reporting of perinatal patients can lead to devastating consequences, including family separation,” Roth said. “Moreover, studies show that the fear of being reported to child welfare agencies deters pregnant people who use drugs from seeking prenatal care. It also creates a disincentive for pregnant women who experience drug dependency from having an open and honest relationship with their prenatal health-care providers out of fear that disclosure will lead to loss of custody of their children or criminal prosecution.”
Drug testing and carceral practices like it have no place in pregnancy or birth care. Even if Ms. F. had tested positive because she had been engaging in substance use, the treatment she received would still be heinous and inappropriate. The treatment of pregnant people in this country who have a substance use disorder is a grave illustration of how policies that place restrictions on reproductive autonomy essentially function as a conduit for eugenics.
“In all situations, we need to support people with substance use disorder who need help,” Hirsch said. “Humiliating people giving birth by testing them without consent does not help that goal. At the core, we should provide health care and support and treatment for anyone who needs it.”
Parenting and birth justice are intrinsically linked to abortion justice and that’s made clear when the same marginalizing tactics of the anti-abortion movement affect the care pregnant people like Ms. F. receive. And the result is what happened in this case—what should have been a joyous day for Ms. F. turned into a nightmare that is only becoming more and more common.
“She will never be able to get back those precious first months with her baby,” Roth said.