Some Alabama hospitals test new mothers and newborns for drugs without receiving explicit consent, which some critics argue is potentially unconstitutional, Nina Martin and Amy Yurkanin report for ProPublica and AL.com.

Under Alabama's chemical endangerment law—the strongest of its kind in the country—a woman found to use drugs during her pregnancy can face severe penalties, including having her child taken away from her or serving jail time. Since 2006, about 500 women have been charged under the law, frequently on the basis of drug tests conducted by hospitals.

In Alabama, health care providers are "mandatory reporters," meaning they are required to report child abuse to authorities. Alabama and 15 other states consider prenatal drug use to be child abuse, but only Alabama, South Carolina, and Tennessee explicitly permit women to be prosecuted criminally. 

Unclear policies

According to Martin and Yurkanin, Alabama hospitals do not have a uniform policy to decide who gets tested. In some counties, nearly all mothers and/or infants get tested. And in some areas of the state, hospitals test for drugs on a case-by-case basis, using criteria—such as whether women have received prenatal care—that Martin and Yurkanin argue "virtually ensure greater scrutiny for poor women."

The American College of Obstetricians and Gynecologists says drug testing requires a patient's consent, and that patients should be informed of reporting requirements and the consequences of a positive test. Forty-two of 49 hospitals that deliver babies in the state declined to answer a ProPublica/AL.com questionnaire on their testing policies, and several only provided incomplete information.

However, in six consent forms obtained by ProPublica and AL.com, drug testing was only explicitly mentioned in two. And none indicated the serious consequences of a positive test result.

Risks to patients

Rosemary Blackmon, EVP of the Alabama Hospital Association, said there was a "general hesitancy" among hospitals in the state to talk about their policies because it could dissuade women from seeking medical care. But some experts say it is the law itself that risks keeping women away.

Stephen Patrick, a professor of pediatrics and health policy at Vanderbilt University School of Medicine, says laws like Alabama's make it less likely for mothers to "engage with their providers honestly."

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Others say the lack of explicit consent presents legal issues. Sara Ainsworth, director of legal advocacy for National Advocates for Pregnant Women, says that "if hospitals are not informing their patients about what their drug-testing policies are, particularly when those results are used to involve law enforcement in their patients' lives, that is an unconstitutional act."

A 2001 Supreme Court case found a South Carolina public hospital's policy of involuntary drug testing women and turning the results over to authorities constituted an unreasonable search and seizure under the 4th Amendment. While that case focused on public hospitals, some experts say private hospitals in Alabama and elsewhere could be vulnerable to similar challenges.

Daniel Abrahamson, director of legal affairs at the Drug Policy Alliance, says, "Legally, this is a very ripe area for attack."

Finding a balance

Meanwhile, experts say drug testing new mothers and pregnant women can help improve prenatal care, prevent complications from pregnancy, and anticipate issues that could arise at childbirth. The American Medical Association supports asking all women about their drug use. And the federal government in 2003 mandated that states design strategies for drug-dependent infants—an issue that has become even more pressing in recent years.

Hospitals charged $1.5 billion for treating infants in withdrawal in 2012, according to recent research. Between 2009 and 2012, the incidence of babies born dependent on drugs nearly doubled, with infants increasingly being born dependent on heroin and opioid painkillers.

Hospitals in Maryland and New York City routinely test new moms for drugs. And Iowa, Kentucky, Minnesota, and North Carolina have laws that require testing in certain circumstances, Martin and Yurkanin write. However, those states don't have laws allowing women to be prosecuted for a positive test—as Alabama does.

The Alabama law doesn't require testing, and one hospital told ProPublica and AL.com that women can opt out of a test by not signing a consent form. The real issue, experts say, is that the consent forms are hard to understand. Many include "boilerplate" language that covers almost any test or procedure, Martin and Yurkanin write.

R. Alta Charo, a medical ethicist and University of Wisconsin law professor who reviewed some of the consent forms obtained by ProPublica and AL.com, said they were far too vague. The forms she studied provided "global consent to anything in medicine that [providers] want to do," she explained, adding, that in her view they did "not count in my mind as informed consent for drug screening"(Martin/Yurkanin, ProPublica/AL.com, 9/30).