Jackson Free Press

This story was co-published with AL.com.

In Alabama, a positive drug test can have dire repercussions for pregnant women and new mothers. Their newborns can be taken from them. They can lose custody of their other children. They can face lengthy sentences in the most notorious women's prison in the U.S. and thousands of dollars in fees and fines.

Yet the hospitals that administer those drug tests—and turn the results over to authorities—are exceedingly reluctant to disclose their policies to the public. In many cases, they test mothers and babies without explicit consent and without warning about the potential consequences, ProPublica and AL.com have found.

According to a review of hundreds of court records, drug testing is ubiquitous in some Alabama counties—sometimes of mothers, sometimes of infants, sometimes both. In some parts of the state, hospitals test on a case-by-case basis, employing criteria that virtually ensure greater scrutiny for poor women.

ProPublica and AL.com began examining hospital drug-testing policies as part of an investigation into Alabama's chemical endangerment law, the country's toughest law targeting drug use in pregnancy. Since 2006, the law has been used to charge nearly 500 women with endangering their unborn children. In many cases, law enforcement officials cited hospital-administered drug tests as probable cause for arrest.

Forty-two of the 49 hospitals that deliver babies in Alabama declined to answer an AL.com/ProPublica questionnaire about testing policies, despite repeated requests over several months. Of the seven that did respond, three provided only partial information. Officials at several hospitals declined interview requests to explain why they didn't want to answer the questionnaires.

In six consent forms obtained from patients and a handful of hospitals—paperwork that patients sign when they check in to deliver their babies—drug testing is specifically mentioned in only two. None indicate that positive results can trigger arrest and prosecution under the Alabama chemical endangerment statute.

"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," said Sara Ainsworth, director of legal advocacy for the New York- based National Advocates for Pregnant Women.

Under Alabama law, drug abuse in pregnancy is considered a form of child abuse, and medical providers are "mandatory reporters," meaning they are required to report positive test results to child welfare authorities, who then must report them to law enforcement. At least 15 other states also treat prenatal drug use as child abuse, but only three—Alabama, South Carolina and Tennessee—explicitly allow mothers to be criminally prosecuted.

The potential penalties under Alabama law are especially stiff: one to 10 years in prison if a baby is exposed but suffers no ill effects; 10 to 20 years if a baby shows signs of exposure or harm; and 10 to 99 years if a baby dies.

Rosemary Blackmon, executive vice president of the Alabama Hospital Association, spoke on behalf of three hospitals that declined to answer the AL.com/ProPublica questionnaire. She said hospitals fear that discussing their drug testing policies could keep pregnant women from seeking medical care.

"I think there's just sort of a general hesitancy that the more they talk about the drug screening and reporting, the greater the likelihood the mother will avoid delivering at a hospital," Blackmon said.

But drug policy experts, medical groups and civil libertarians say it's the threat of losing their children and ending up behind bars that creates an atmosphere of fear.

"Criminal laws tend to make women less forthcoming," said Dr. Stephen Patrick, professor of pediatrics and health policy at Vanderbilt University School of Medicine. "It doesn't set up a place where people have the opportunity to engage with their providers honestly."

The severe consequences for women and families make it even more important that doctors and hospitals are transparent in their testing policies, experts say.

The American College of Obstetricians and Gynecologists guidance states that drug testing "should be performed only with the patient's consent ... Pregnant women must be informed of the potential ramifications of a positive test result, including any mandatory reporting requirements."

In 2001, the U.S. Supreme Court struck down a program in South Carolina that involuntarily tested pregnant drug users solely for law enforcement purposes. It's unclear how often hospitals in Alabama report positive drug tests directly to law enforcement, but a bill proposed earlier this year by the sheriff of Etowah County, northeast of Birmingham, would have required reporting within two hours whenever a pregnant woman or newborn tested positive.

Hospital testing policies are so opaque that even state health officials say they are in the dark about specifics. "Some hospitals, any pregnant woman that comes in, they'll test for drugs," said Janice M. Smiley, director of the Perinatal Health Division at the Alabama Department of Public Health. "Some will test all their newborns. It's not one thing where everybody does the same. There's no consistency there."

Does she know which hospitals take which approach? "We don't," Smiley said.

Drug testing is an issue that U.S. medical providers are increasingly likely to confront. The incidence of babies born dependent on drugs, especially opioid painkillers and heroin, nearly doubled from 2009 to 2012, according to research by Patrick. Hospitals charged $1.5 billion to treat babies in withdrawal in 2012, according to the same study.

There are many medical reasons to screen pregnant women and new mothers for drug use, experts say: to provide proper prenatal care, to prevent pregnancy complications and to anticipate problems that may arise at birth. Many medical organizations, including the American Medical Association, support universal screening: asking women about their use of drugs as well as legal substances, such as alcohol and tobacco, that can affect prenatal health as much, if not more, than illicit ones.

But studies have found that many women lie about substance use during pregnancy, so some hospitals and communities have turned to testing—sometimes urine, sometimes blood, sometimes the baby's first bowel movement, or meconium.

Several hospitals in Cincinnati announced universal drug testing for pregnant women earlier this year, and hospitals in New York City and Maryland have regularly tested new moms and pregnant women, according to research. Four states—Iowa, Kentucky, Minnesota and North Dakota—also require testing under some circumstances according to the Guttmacher Institute.

Hospital officials in those states have said they are responding to an increase in opioid use leading to drug-dependent babies. But none of those states has a law allowing women to be prosecuted for drug use in pregnancy.

In 2003, the federal government began requiring states to create strategies for dealing with drug-dependent babies. But the law left open the question of which babies and mothers should be tested, allowing hospitals to set their own parameters.

In Alabama hospitals, every facility from Thomas Hospital, in the prosperous bayside community of Fairhope, to the sprawling, urban campus of UAB Hospital in Birmingham, sets its own criteria.

Of the hospitals that answered the AL.com/ProPublica questionnaire, UAB Hospital appears to hew most closely to the American College of Obstetricians and Gynecologists guidelines. Doctors there use a separate form to seek consent for drug testing; women can opt out simply by not signing.

According to court records and interviews with prosecutors, some hospitals have a policy of testing all newborns, in part because federal laws protecting patient privacy don't apply in cases of child abuse. If an infant tests positive, mothers are then tested and reported to authorities.

Hospitals that take this approach appear to include Decatur Morgan in Morgan County, which has the largest number of chemical endangerment arrests in the state—including a high percentage of first-time offenders who test positive for marijuana only. Decatur Morgan officials declined numerous requests for comment.

Other hospitals single out patients with certain symptoms and those who received little to no prenatal care, the hospital questionnaires indicate. "A lack of prenatal care is a red flag," the hospital association's Blackmon said.

Women who use drugs are more likely to go without prenatal care, according to a 2004 study in the Journal of Maternal-Fetal and Neonatal Medicine. But so are women with less education and no health insurance.

Legal experts worry that singling out women who haven't received prenatal care could unfairly target poor women and those who live far from medical facilities.

More than half of the births in the state are paid for by Medicaid, which is only available to women who earn less than $1,433 a month ($17,196 per year). What's more, the number of rural hospitals in the state offering obstetrical care has dropped by about 60 percent since 1980, according to the Alabama Rural Health Association, which makes it more difficult for rural women to obtain prenatal care

"You don't have to be on drugs not to receive prenatal care," said Linda Fentiman, a professor at Pace University School of Law, who has studied fetal protection laws. "It could just be that you can't afford it."

The U.S. Supreme Court has addressed the issue of drug testing maternity patients only once, in Ferguson v. Charleston in 2001. The justices found that a policy at a South Carolina public hospital to involuntary test women (in this case, almost exclusively black) and turn positive results over to law enforcement solely for prosecution purposes violated Fourth Amendment protections against search and seizure.

"The reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results ... will not be shared with nonmedical personnel without her consent," Justice Anthony Kennedy wrote in his majority opinion.

But that decision focused on publicly funded hospitals. "Legally, this is a very ripe area for attack," said Daniel Abrahamson, director of legal affairs at the Drug Policy Alliance, which helped organize amicus briefs against the hospital's policy in the Ferguson case.

In admissions forms ProPublica and AL.com obtained, references to drug testing were almost always obscured in vague boilerplate language giving consent to things like "diagnostic procedures," "usual and customary medical/emergency treatment," and "other... care considered advisable or necessary by the physician."

The consent forms are "really unclear," said R. Alta Charo, a medical ethicist, former senior adviser to the Food and Drug Administration and University of Wisconsin law professor who reviewed them for ProPublica and AL.com. "This is a global consent to anything in medicine that they want to do. That is not at all a standard for consent. ... It does not count in my mind as informed consent for drug screening."

The absence of clarity is even more striking when compared with other detailed and explicit consent forms maternity patients can be required to sign.

When Casey Shehi checked into Gadsden Regional Medical Center in Etowah County to deliver her son in August 2014, her admissions paperwork totaled 17 pages. The consent forms covered everything from potential medical complications to the photographing of Shehi's newborn and hospital visitation rules.

The only reference to possible drug testing was a blanket statement: "I consent to examinations, blood tests ... laboratory and imaging procedures, medications, infusions, nursing care, and other services or treatments ..." No one at Gadsden Regional orally informed her that she would be drug tested, Shehi said.

When traces of benzodiazepine were found in Shehi's urine—from a Valium she had taken to help her sleep—she was turned over to child welfare and law enforcement authorities, then charged with chemical endangerment. Etowah has arrested more pregnant women and new mothers for chemical endangerment than any other Alabama county in the last two years.

Shehi's case was recently dismissed, but her experience with drug testing has been mirrored by women across the state, according to a recent AL.com reader survey.

A mother who gave birth at Huntsville Hospital this summer reported that she was "appalled" when she found out she had been drug tested. Two women who gave birth at other Alabama hospitals‚Marshall Medical Center South and Brookwood in Birmingham—only found out they were drug tested after false positives, they said in the survey.

"(B)ecause (testing) is now considered the standard of care, patients are not given an option to refuse it," said a doctor who anonymously provided a Huntsville Hospital consent form. "(N)or are they told that this is included in their consent before signing ... I've been told by moms that they just get handed the urine cup and told to void."

Fifty-six of the 110 women who responded to the reader survey said they had no idea whether they'd been drug tested. Officials at Brookwood Medical Center, Huntsville Hospital and Marshall Medical Center South all declined to comment and did not return questionnaires.

In a few counties, notably Madison, where Huntsville is located, defense lawyers recently have been more aggressive in challenging the legality of drug tests and law enforcement investigations based on them, according to court records. A number of those cases have been dismissed.

General medical consents are not the same as consent to a police search, said Lynn Paltrow, executive director of National Advocates for Pregnant Women and a lead attorney in the Ferguson case. "Unless ... there (is) a search warrant or the woman (gives) a specific consent to being searched for criminal justice purposes," she said, "the collection and transmission of the test results constitute an illegal search and seizure in violation of the Fourth Amendment."

State Rep. Patricia Todd, a Birmingham Democrat with a background in public health, said there was little political appetite to change the way Alabama addresses drug use during pregnancy. "It's easy to throw someone in jail for something they do," Todd said. "You don't have to deal with the real issue."

That may leave the matter in the hands of lawyers. Hospitals and medical providers that test women without notice or consent and turn over positive results to authorities are leaving themselves open to legal challenge, said Randall Marshall, legal director of the American Civil Liberties Union of Alabama.

The closer hospitals and law enforcement officials are working, the more likely they are to run afoul of the Ferguson ruling, he said. "This is an issue that we are very interested in."

Drug Tested When Giving Birth? Tell Us Your Story.In many parts of the country, the war on drugs has a new front: the maternity ward. But policies meant to protect babies can have unintended, and sometimes dire, consequences for women's constitutional and reproductive rights. Have you or someone you know been drug tested during pregnancy or childbirth? Did you give your consent? ProPublica would like to hear from you. If you're uncertain about whether you or your child were tested, you can request your admission and medical records from the hospital or ask your doctors. Get all paperwork for you and your child, including consent forms and hospital testing policies. Be aware: You have a legal right to your medical information. You can help our reporting on the issue by taking this short survey:

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