Tens of thousands of new mothers across the country have been referred to law enforcement by hospitals and child welfare agencies over allegations of drug use during pregnancy.
But in many cases, the referrals began with false positive results from flawed drug tests that can be triggered by prescribed medications, according to a new report by The Marshall Project.
The six-year review of state and federal data found referrals in 21 states. According to data reviewed by The Marshall Project, more than half of the cases referred to law enforcement in 15 states, about 22,000, were ultimately dismissed by child welfare agencies as not involving abuse or neglect. Still, police sometimes pursued criminal investigations based solely on initial test results.
“My initial genuine reaction is, frankly, shock and dismay,” said Dana Sussman, senior vice president of the legal advocacy organization Pregnancy Justice. “This represents an incredibly regressive and counterproductive approach.”
One of those cases involved Ayanna Harris-Rashid, who gave birth to a baby boy in South Carolina in 2021.
She said she had used legal CBD gummies and a hemp-based ointment for nausea and pain during pregnancy. After she and her baby tested positive for marijuana, hospital staff reported her to child welfare officials, who forwarded the case to police.
Harris-Rashid was arrested and jailed overnight on a felony child neglect charge that was later dropped. But the damage was already done. Her milk supply had decreased and ultimately she was no longer able to breastfeed her newborn son.
“They shook me bare. They made me feel very indecent and inhumane,” she said. “This is a person, a woman, a mother, an actual individual. What justifies this?”
In Oklahoma, sheriff’s deputies removed two children from their parents after a hospital drug test falsely indicated meth use caused by an acid reflux medication, according to court records viewed by The Marshall Project. In South Carolina, police questioned a mother who tested positive for fentanyl from her epidural.
The investigation also found that in 13 states, child welfare agencies automatically share all such reports with law enforcement. Oklahoma had the highest rate – about one referral for every 24 births.
The report found that urine drug screens are often unreliable and cannot distinguish between illegal drugs and legal substances such as CBD or prescribed medications without further testing.
Criminal prosecutions of pregnant women have risen in recent years, with a sharp increase after the Supreme Court’s 2022 Dobbs decision overturning Roe v. Wade, particularly in states with strict abortion laws.
“The states that are doing these automatic referrals, that makes the women in those states incredibly vulnerable,” Sussman said. “It opens the door, even when there’s no basis in law, to actually bring these prosecutions.”
But some states have started to move away from law enforcement involvement.
The state of Illinois ended its requirement to notify police in 2024, citing evidence that punishment worsens health outcomes for mothers and babies.
