New Jersey has sued a private hospital system over its practice of universal testing on all new parents, which the state alleges is being carried out without the informed consent of parents and is often leading to notifications to the state abuse and neglect hotline.
New Jersey Attorney General Matthew Platkin and the Division on Civil Rights filed a complaint in state superior court against Virtua Health, which operates several hospitals in the Garden State. The complaint argues that the company’s universal testing of pregnant patients, which began in 2018, violates state anti-discrimination laws and has violated patients’ fundamental rights by not obtaining informed consent.
“In parts of our country, the rights of pregnant individuals are being eroded. This action illustrates our commitment ensuring that doesn’t happen in New Jersey,” said Attorney General Platkin, in a statement announcing the complaint. “Whether it means preserving the right to reproductive freedom or ensuring that a pregnant person doesn’t undergo tests or procedures without their knowledge and consent, we will defend our residents’ rights.”
Earlier this year, a New York mother sued another hospital operator, Kaleida Health, after a positive drug test prompted by her consumption of poppyseed bagel bites led to a CPS report.
Investigations into child welfare and hospital drug testing policies have shown the potential for racial bias in these practices, and also that many of the positive tests yielded involve the presence of marijuana, which does carry health risks for mother and child but is now a legal substance in a growing number of states. In 2020, an investigation into bias in drug testing moms by the New York City Commission on Human Rights found that Black women are more likely than white women to be drug tested before or immediately following childbirth, despite similar rates of drug use, and they are more likely to be deemed unfit parents, losing custody of their babies. Days later, the city’s public hospital system announced a new policy, apparently decided upon months before, that requires mothers’ written consent to be tested for drugs.
A 2022 paper published in Hospital Pediatrics looked at the testing of newborns in Connecticut, as well as the state’s novel policy giving hospitals the ability to more generally report positive tests without always reporting a specific person to the hotline. The study found that nearly 8 in 10 notifications made from hospitals pertained to marijuana exposure, and that “Black mothers were disproportionally overrepresented among notifications compared with the state population.”
Virtua’s policy actually reflects an interesting wrinkle in the debate about such policies, because the fact that they test every pregnant patient does eliminate the potential for bias in who gets tested. And this is actually the preferred policy of the American Academy of Pediatrics, per this statement from 2017 on opioid use:
A public health response, rather than a punitive approach to the opioid epidemic and substance use during pregnancy, is critical, including the following: a focus on preventing unintended pregnancies and improving access to contraception; universal screening for alcohol and other drug use in women of childbearing age; knowledge and informed consent of maternal drug testing and reporting practices; improved access to comprehensive obstetric care, including opioid-replacement therapy; gender-specific substance use treatment programs; and improved funding for social services and child welfare systems.
New Jersey, however, takes the view that universal testing within this group of a hospital’s patients is in and of itself a form of discrimination.
“Virtua’s practices single out pregnant patients for mandatory drug testing without informed consent,” said Sundeep Iyer, Director of the New Jersey Division on Civil Rights, in the statement announcing the complaint. “As a result, patients are unnecessarily traumatized and fear they will lose their children mere hours after giving birth. Virtua’s practices violate our civil rights laws, and we look forward to proving our case in court.”
UPDATE: NJ Spotlight News has reported that effective this week, Virtua has ended its practice of conducting drug tests on all pregnant patients, and will instead screen them based on “patient indications.” Virtua spokesperson Daniel Moise told the outlet:
“This change has been under development since early 2024. Virtua is committed to providing the best patient experience possible while still ensuring that newborns receive the appropriate and necessary care, including those who require additional care for neonatal opioid withdrawal syndrome (also referred to as neonatal abstinence syndrome).”
