Nonconsensual Drug Testing Has Criminalized Tens of Thousands of Pregnant People

New York had the chance to make history in more arenas than basketball this June. Earlier this month, the New York Senate passed the Maternal Health, Dignity and Consent Act, becoming the first legislative chamber in the country to pass legislation that would require informed consent for drug testing of pregnant people. But despite that promising step, the state has once again failed to protect some of its most vulnerable residents from unjust criminalization.

There was a broad coalition of support for this legislation, including researchers, health care providers, and advocates. Several prominent medical and legal groups supported the legislation, including the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and the New York City Bar Association. However, despite the wave of support for the legislation, the victory in the New York Senate was short-lived. The Maternal Health, Dignity and Consent Act died when it didn’t get a vote in the Assembly.

This isn’t the first time this kind of legislation has failed to pass in New York; advocates have been trying for seven years to ban nonconsensual drug testing of pregnant people and have failed every year. This legislation, which has repeatedly been reintroduced only to fail, would have prohibited health care providers in the state from drug testing pregnant or postpartum people and their newborns without explicit verbal and written informed consent. The legislation would have, however, allowed for health care providers to override the ban if there was a significant and immediate medical emergency.

While drug and alcohol use while pregnant can present complications for a newborn, nonconsensual drug testing of pregnant people doesn’t solve the issue at hand. It erodes trust between the health care provider and the patient, a core tenet in any health care relationship. And it does nothing to treat addiction as the disease that it is. This practice has been shown to force pregnant people to delay prenatal care, afraid of the potential criminal consequences of being drug tested against their will. Moreover, nonconsensual drug testing could trap the birthing parent in a web of criminalization that, at best, hinders family bonding, and at worst, irrevocably tears families apart — all because of a disease.

Mandatory, nonconsensual drug testing has put more than 70,000 pregnant people in 21 states into the criminal legal system over a six-year period, according to a landmark study by the Marshall Project, and that is likely a significant undercount. This violation criminalizes pregnant people who are dealing with addiction. It does nothing to treat their addiction or support them and their newborn as they transition to this next phase of life. Instead, for too many pregnant people, it can tear their family apart at the most fragile time and force Child Protective Services (CPS) involvement, which can make recovery for birthing people even less likely in the wake of trauma.

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Nonconsensual drug testing is a violation of an individual’s right to bodily autonomy. Masked as an attempt to keep newborns safe, it’s actually a means of policing pregnant and birthing people. Rather than treating addiction as a disease, nonconsensual drug testing regimes treat drug use while pregnant as a criminal act inflicted upon an autonomous person. This reifies the harmful notion of fetal personhood, strengthening the notion that a fetus is an individual citizen, while undermining the pregnant person’s fundamental personhood. Such drug testing undermines pregnant and birthing people’s right to privacy, bodily autonomy, and personhood in an insidious way.

Largely because addiction is still so stigmatized in the U.S., nonconsensual drug testing of birthing people can appear more socially acceptable than other intrusions into pregnant people’s rights. But any attack on the personhood of pregnant and birthing people contributes to the fundamental erosion of our collective right to bodily autonomy. It’s part of how the U.S. ended up in the post-Roe hellscape in which we currently find ourselves.

Not only that, but mandatory, nonconsensual drug testing is yet another mechanism that ensnares people who can give birth into a net of policing and criminalization that has had devastating effects for families and communities, particularly those of color. Black birthing parents are disproportionately targeted for nonconsensual drug testing and involved in CPS investigations.

It’s disheartening to see a “blue” state like New York fail to protect pregnant and birthing people, particularly when abortion bans cover vast swaths of the Southeast and Midwest. Unfortunately, nonconsensual drug testing of birthing people is considered routine in many parts of the country. The Marshall Project found that Georgia, Oklahoma, and Minnesota referred the most cases to law enforcement. Georgia alone referred around 18,000 cases from 2017 to 2023. And it’s important to note that Minnesota is considered a “blue” state that protects abortion rights. So if a state that champions its abortion legislation and has refused to extradite abortion providers who face criminal charges in states with abortion bans won’t ban nonconsensual drug testing of birthing people and newborns, which state will?

Advocates for the Maternal Health, Dignity and Consent Act will have another chance with the next legislative session in New York, which begins in January 2027. It is imperative that New York State lawmakers take this unique opportunity to not only pass legislation that could improve health outcomes for birthing people, but to truly embody the reproductive health leader that it claims to be. The rest of the country is watching.

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