The state of New Jersey has adopted a slate of reforms changing how hospitals handle allegations of substance use in pregnancy, becoming one of the first in the nation to require healthcare providers to confirm the results of drug tests before reporting new parents to child welfare authorities.
The new regulations follow reporting by The Marshall Project and Reveal News, which found that hospitals around the U.S. routinely screen pregnant patients with drug tests that, while fast and cheap, are easily misinterpreted and have false positive results as high as 50%. The investigation found that, in 2024, not a single state required hospitals to confirm results with more precise tests before reporting patients to child welfare officials.
Child welfare has separated parents from their newborns due to positive test results from poppy seeds, prescribed medications and drugs administered by hospital staff during childbirth. Pregnant people are often drug tested without their knowledge or consent, and have reported experiencing enduring trauma from encounters with the child welfare system during the early days of their newborns’ lives.
Under existing New Jersey law, a positive drug test alone does not constitute child abuse or neglect and is not required to be reported to child welfare. But hospitals in the state often reported the positive results anyway, triggering assessments and investigations into new mothers.
New Jersey child welfare officials received more than 2,300 reports of newborns allegedly exposed to drugs in the womb from mid-2018 to mid-2023, The Marshall Project found.
State regulations now require hospitals to confirm the initial test results with a second, more precise test before sharing them with child welfare authorities. The new rules acknowledge that rapid drug tests can produce false positives and explain that these results should be considered “preliminary.” Providers can also report patients to child welfare if they disclose that they have used substances during pregnancy.
Molly Linhorst, staff attorney with the ACLU of New Jersey, heralded the changes as “a huge step forward for New Jersey.”
The group first filed complaints with the state on behalf of two mothers who were drug tested during birth in 2023. Since then, at least three dozen women have come forward with claims they were drug tested without their consent, Linhorst said, and several tested positive due to prescribed medications and poppy seeds. Many of them faced intrusive and traumatic child welfare investigations.
“This is a big deal,” Linhorst said, adding that many of the women who contacted the group are thrilled to hear about the new regulations. “With these in place, fewer people will be unnecessarily referred to [child welfare] and subject to those invasive, traumatic investigations by the state when they have just given birth.”
The New Jersey Department of Children and Families has also created an online portal that healthcare providers can use to submit information about the family to child welfare without specifically identifying them. The portal can generate a list of potential support services for parents in need of programs like counseling or addiction treatment. If providers are concerned for a newborn’s safety, the portal prompts them to file a separate report that can result in a child welfare investigation.
The regulations state this new process “will prevent unnecessary involvement with the child protection system.”
Jennifer Kirkman, an assistant director at the New Jersey Department of Children and Families, said providers have found the state’s new rules reassuring for patients taking prescriptions to treat opioid addiction, many of whom had previously considered going off life-saving medications to avoid investigations by authorities. Medical centers “can finally tell their individuals who are pregnant in their programs, ‘You don't have to worry about child welfare,’” she said.
To inform hospitals about the new regulations, the New Jersey Department of Health released guidance directing providers to obtain informed consent before drug testing and flagging concerns over the disproportionate testing of patients who are non-White, immigrants and low-income. The state Department of Children and Families has given presentations to providers on the rule changes, with plans to launch a new training program aimed at helping those providers navigate the reporting process and engage directly with affected families.
Advocates praised several aspects of New Jersey’s reforms and the guidance around obtaining informed consent, which they said could reduce racial disparities in drug testing and reporting to child welfare.
Black women are more likely than White women to be drug tested at childbirth and reported to child welfare authorities. Ashley Sawyer, senior policy counsel at the advocacy group Pregnancy Justice, said the process of obtaining consent from a patient often leads health care providers to realize that the drug test is not needed to inform medical treatment, reducing unnecessary contact with the child welfare system.
“There is this unfortunate misconception that doctors need to know if the person has been using substances in order to change how they will treat the newborn or how they will treat the mom,” Sawyer said. “But actually that information is primarily used to report them.”
In a new analysis, The Marshall Project estimated that the mothers of Black newborns in eight states are around 2.5 times more likely than those of White newborns to be referred to law enforcement over alleged substance use during pregnancy. The analysis did not include New Jersey, which, unlike most of the states included in the analysis, does not have a policy of automatically referring these claims to law enforcement.
Healthcare providers around the U.S. are working to change hospital drug testing policies, and New Jersey is not the only state to take action following reporting about the drug testing of pregnant patients.
Earlier this year, Virginia passed a law clarifying that taking prescribed addiction treatment medications during pregnancy should not be considered child abuse or neglect. Massachusetts passed a law in 2024 removing the requirement that health care providers report the birth of any newborn exposed to substances in the womb.
Lawmakers in New York, Arizona and Tennessee have introduced bills aimed at decreasing reliance on hospital drug tests and requiring hospitals to obtain consent before testing. The bills didn’t make it out of their legislative sessions.
In New York, the bill passed the State Senate but did not get through the Assembly. Although the effort ultimately failed, advocate Jasmine Wali from the Family Justice Fund called the vote “a historic milestone as the first chamber in the country to affirmatively protect informed consent before drug testing in childbirth.”