Some states and hospital systems have updated their policies on punitive drug testing for pregnant women and newborns, aiming to better support patients’ treatment and recovery from substance use disorder and combat racial disparities in testing and reporting.

Under federal law, medical professionals must notify child protective agencies when an infant has been affected by the mother’s substance use, including alcohol use. However, the federal rules — which were updated in 2016 in response to the opioid epidemic — emphasize that substance use disorder on its own doesn’t constitute child abuse, and require states to develop their own “plans of safe care” to promote the long-term health of the newborn and the mother.

But federal law doesn’t define “affected,” and punitive drug testing and reporting policies vary from state to state and even from hospital to hospital. As the opioid crisis continues, some of the nation’s most prominent hospital systems and a handful of states have enacted or are considering less punitive approaches, as long as the baby is in no imminent danger.

One impetus for the shift is research showing that Black pregnant women are more likely to experience punitive drug tested and long-standing disparities in how Black and Indigenous families are treated by child welfare agencies. Mental health conditions and substance use have also emerged as leading causes of maternal death, according to the federal Centers for Disease Control and Prevention.

“The data about bias in child welfare reporting related to pregnant/birthing people’s substance use has been around for decades,” Sarah Roberts, a legal epidemiologist and professor at the University of California, San Francisco, wrote in an email to Stateline. Roberts tracks testing policies across the country.

What’s changed, Roberts said, is a growing awareness of the harms of over-testing and over-reporting to child welfare agencies.

Only two states, Minnesota and North Dakota, have laws that require punitive drug testing of pregnant patients in certain circumstances, such as when there are complications during birth that point to the possible use of drugs or alcohol, according to an analysis by If/When/How, a reproductive justice nonprofit. And only four states (Louisiana, Minnesota, North Dakota and Wisconsin) mandate the drug testing of newborns in certain circumstances.

Read the full article about punitive drug testing during pregnancy by Nada Hassanein at Stateline.