A Marshall Project investigation of six years of state and federal data found that in at least 70,000 cases in 21 states, parents were referred to law enforcement agencies over allegations of substance use during pregnancy.

That number is far higher than experts previously knew but still represents a significant undercount.

Why it’s important: There are many issues associated with the drug tests and resulting child welfare and law enforcement processes.

Even when the tests are accurate and identify a parent who used illegal drugs during pregnancy, resulting investigations, criminal charges, and/or child removal are often more harmful to both the parent and the child. It is a major risk factor for children and can worsen substance use outcomes for the parent.
A new (unrelated) study analyzing deaths among pregnant and postpartum women (up to 42 days after delivery) in the U.S. 2018-2023 found that the leading cause of maternal death was unintentional drug overdose.

The details:

Flawed tests: Drug tests are easy to misinterpret and are often wrong. They do not show how often or for how long someone may have used drugs, and most tests cannot distinguish between a positive result caused by illegal vs. legal products. Some law enforcement agencies may conduct additional investigations, but many do not, arresting mothers based solely on positive drug test results.
Prescribed medications: Data from three states that specifically track cases involving prescriptions show that thousands of new mothers were referred to law enforcement based solely on medications their doctors gave them.
Police involvement despite child welfare dismissal: In many states, referrals to police occurred even though child welfare agencies dismissed the allegations or never accepted the reports. In 15 states that reported the outcomes of child welfare investigations, more than half of the cases referred to law enforcement were found not to involve child abuse or neglect, yet police sometimes launched criminal probes that continued well after child welfare authorities declined to take action.
Automatic referral to police: In 13 states, child welfare agencies automatically share all reports related to drug use with law enforcement. Some states have set up alternative responses to offer services to families and steer them away from child abuse investigations, but several of these states also file automatic referrals with police.
Traumatic experience: Although most referrals to law enforcement did not lead to criminal investigations, many women were threatened with arrest or criminally charged. Others were confronted by police in their hospital rooms or homes and forced to turn over their children. Even without criminal charges, a police officer’s presence can be traumatic and frightening.