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.
Hellbound and Down 