Pregnancy and Privacy

By all appearances Crystal Landry is an upstanding citizen.She works in a nursing home, where she heads the activities department. Last year she and her husband, Scott, bought their first home, a two-family house. The front yard is filled with brightly colored plastic toys that belong to their downstairs neighbors, who run a day care center. The Landrys live upstairs in a Pottery Barn-handsome apartment with their son, Benjamin, a bright and energetic toddler who is so articulate you might suspect he's going on 30, not 3.To look at her comfortable home and her precocious son, you probably wouldn't suspect that Landry is a bad mother, an irresponsible parent, a potential criminal. But there is one thing that makes Landry suspect, at least in some eyes.She's pregnant.And that fact alone is enough to compel her doctor to subject her to random drug testing, to screen the urine samples she gives during her regular prenatal check-ups for traces of marijuana, cocaine and heroin.If she were to fail a drug test, her obstetrician would report the results to the state Department of Social Services, which could then send out investigators to determine whether Landry is taking proper care of Benjamin. In extreme cases, DSS can remove children from their homes and place them in foster care.Landry found out about her doctor's drug testing policy from his office's social worker during her first pregnancy check-up. If she refused to be tested, she was told, her doctor would no longer treat her."I told her it was morally outrageous and disgusting," Landry recalled. "Drug testing should not be a requirement for health care."Landry said she wouldn't have to worry about failing a drug test, since she doesn't use drugs. Still, weeks after that visit, she is still infuriated by the principles behind her doctor's policy, by what she sees as an appalling intrusion into her privacy, and by her doctor's decision to expand his role from health care provider to government informant. But while Landry may feel offended, she shouldn't take the policy too personally. Her doctor, William Callahan, said he has tested some of his patients for years, but only began informing them of the testing policy about a year and a half ago.Callahan says his policy is not unique. Random drug testing, he said, has become a fairly standard practice among obstetricians. Nonetheless, it's not widely known -- especially among the women being tested.Perhaps that's because their doctors don't inform them -- a situation some legal experts say violates a doctor's obligation to get informed consent from a patient before performing medical procedures, including drug testing. Or perhaps the women simply aren't aware of what they're consenting to; some patients are so overwhelmed by the volume of information they receive during their initial obstetrics appointment that they may miss the mention of drug testing.Such an oversight could prove costly. Across the country, doctors and hospitals inform child welfare authorities when pregnant women or newborn babies test positive for illegal drugs. In some states, prosecutors have brought criminal charges against mothers for using drugs while they were pregnant.But the random drug testing of pregnant women has serious implications for more than just drug-using mothers. The practice underscores the arbitrary nature of U.S. drug policies, which criminalize certain substances while failing to outlaw others that are known to be equally or more harmful.It also raises questions about patients' rights -- and women's rights in particular. Should a doctor be able to require patients to submit to drug tests as a condition of treatment? Should the rights of a fetus take precedence over a women's right to privacy? And should doctors be policing patients for illegal behavior?Most important, the practice raises questions about a doctor's dual obligations, to his adult patient and to the unborn child whose health he is also charged with protecting. While the decision to screen pregnant women for drug use may be driven by the best of intentions, evidence suggests that it may ultimately do more harm than good.There's little question why doctors like Callahan have instituted drug testing policies. In a 1994 report to its physician-members, the American College of Obstetricians and Gynecologists noted that "substance abuse by pregnant women continues to be one of the leading problems in modern obstetrics."Researchers have had a hard time pinning a specific number to the problem. A 1996 study by the National Center for Health Statistics estimated that as many as 11 percent of women use drugs while pregnant. In 1998 the National Institute on Drug Abuse reported that 5.5 percent of pregnant women use illegal drugs, with 2.9 percent smoking marijuana and 1.1 percent using cocaine.The most commonly used substances, the report noted, were legal ones: 19 percent of pregnant women drink, while more than 20 percent smoke.Medical researchers, to some extent, disagree about the effects of specific drugs on developing fetuses. Some, for instance, link marijuana use to premature births and developmental problems. Others contend that there's little difference between babies born to pot-smoking mothers and those born to non-pot smokers, and they say there is no evidence that marijuana causes developmental abnormalities.So, too, has there been disagreement about the effects of cocaine. In the 1980s, as the crack epidemic exploded, researchers believed children born to cocaine-using mothers were likely to be of lower intelligence than other children. More recently, however, research has linked pre-natal cocaine exposure not with lowered intelligence but with other development problems that make children more aggressive and anxious.For the most part, however, there is consensus among medical researchers that drugs such as cocaine and heroin are linked to premature and still births, retarded fetal growth and long-term problems with social and cognitive development.Ironically, legal substances can be as bad or worse than illegal ones. The National Institute for Health has said that alcohol use during pregnancy causes more, and more severe, birth defects than any other recreational drug. Among those defects is Fetal Alcohol Syndrome, a congenital disorder that can cause growth retardation, lowered intelligence, central nervous system problems and facial deformities. Tobacco use, meanwhile, has been linked to low birth weight, miscarriages, premature births, retarded growth, Sudden Infant Death Syndrome, impeded cognitive development and behavioral problems.Despite the limitations of the studies and the disputes among various researchers, few physicians are likely to dispute that pre-natal exposure to drugs can pose serious risks. The question, then, becomes what should concerned doctors do to try to offset those risks?William Callahan, Crystal Landry's doctor, is unapologetic about the decision he made several years ago to begin testing his pregnant patients for drug use."More and more evidence was coming out in the medical literature that the use of drugs could be a major cause of premature labor," Callahan said. "I think it is a shame that we've reached a point where there's a need to randomly test people for drug use who are pregnant. But that is a leading cause of preterm labor and a cause, secondarily, of infant morbidity and mortality. Those are good reasons, medically, to do it."Callahan's viewpoint is supported, at least in part, by other health care providers, who stress that it is vitally important for a doctor to have a complete medical history of a patient, including information about the patient's drug, alcohol and tobacco use.The American College of Obstetricians and Gynecologists maintains that periodic urine tests can be a useful way to "encourage abstinence" among drug users. The organization adds a caveat, however, noting that urine tests have limited reliability, since most drugs are cleared from the body fairly quickly.In addition, the ACOG warns its members against universal drug testing, and notes that "overaggressive urine testing could be perceived by the patient as threatening and thus decrease patient compliance." And, the ACOG adds, no patient should be tested without having first given informed consent.The question gets stickier when it moves from the medical to the legal arena. The government's War on Drugs has moved from the streets and into to the workplace and the doctor's office through drug testing policies that can carry stiff penalties, even criminal charges.According to Lynn Paltrow, an attorney with the National Advocates for Pregnant Women, at least 200 women in 30 states have been arrested and criminally charged for their behavior during pregnancy.While most have been charged with illegal drug use, others have been prosecuted for drinking alcohol -- a legal, if medically inadvisable act. In one case, a woman was prosecuted for not following her doctor's orders to get bed rest and to refrain from sex. For the most part, the drug prosecutions failed when courts decided that the charges were unconstitutional or otherwise not supported by the law.But there is one notable exception: In South Carolina, the courts have decided that a "viable" fetus can be considered a child under the state child abuse and neglect laws. That means that women can be prosecuted under those laws for drug use or other activities believed to be risky to the fetus, with a penalty of up to 10 years in prison.In 1997 two women who were convicted under those laws appealed to the state Supreme Court, arguing that state child abuse laws were not intended to include fetuses. The court rejected their appeal. Last year the women took their case to the U.S. Supreme Court, which refused to hear it, meaning South Carolina can continue to prosecute pregnant women for child abuse.In Massachusetts, no prosecutor has successfully brought criminal charges against a woman for her behavior while pregnant. Working against such cases is a Plymouth superior court decision stating that a fetus cannot be considered a person under the law.The defendant in that case, Josephine Pellegrini, had been indicted in 1989 for distributing cocaine to a minor -- the "minor" being her fetus. Pellegrini had used cocaine while she was pregnant with her son, who tested positive for cocaine metabolites after birth. Prosecutors argued that Pellegrini had "distributed" the drug to her son in utero, through the placenta.In 1990 Superior Court Justice Suzanne DelVecchio ruled that while the state had an interest in protecting the health and welfare of a viable fetus, in this case "the state's interests do not override the defendant's right to privacy." In particular, DelVecchio noted that although Pellegrini's son had tested positive for cocaine in his system, there was no evidence that the drug had harmed him. "An intrusion into Ms. Pellegrini's right to privacy cannot be permitted on mere speculation of harm to the fetus," the judge wrote.In her ruling, DelVecchio touched on a key point made by many opponents of drug testing and reporting policies: that punitive rather than helpful actions against pregnant drug users will only serve to compound their problems."The commonwealth may effectuate its stated interest in protecting viable fetuses through less restrictive means, such as education and making available medical care and drug treatment centers for pregnant women," DelVecchio wrote. "By imposing criminal sanctions, women may turn away from seeking prenatal care for fear of being discovered, thereby undermining the state's asserted interests. The state's interests would be further undermined when women seek to terminate their pregnancies for fear of criminal sanctions."A number of medical organizations, including the American Medical Association, the American Academy of Pediatrics and the American Nurses Association, have all taken the position that pressing criminal charges against pregnant women for drug use could backfire and drive women away from health care.Punitive approaches are not limited to criminal prosecution. Even in states where criminal prosecutions have failed, there are still serious consequences for pregnant women who test positive for drug use.In a 1991 survey, the ACOG found that 13 states had laws requiring health care providers to report cases of drug-using pregnant women to child welfare authorities.In Massachusetts, doctors -- along with other health care providers, social workers, teachers and others in similar professions -- are considered "mandatory reporters," who are legally obligated to report suspected cases of child abuse or neglect.The law also requires doctors to immediately report to the state Department of Social Services any child "who is determined to be physically dependent upon an addictive drug at birth." While many researchers maintain that marijuana is neither physically addictive nor physically harmful to a fetus, doctors routinely report positive marijuana tests to DSS.This kind of civil intervention -- in which drug tests during pregnancy are reported not to legal authorities but to child welfare authorities -- has become increasingly common in recent years. Last year, the National Organization for the Reform of Marijuana Laws, or NORML, established the Family & Child Custody Project to handle the influx of cases of parents losing their children for suspected drug use."It's been a pretty recent phenomenon, from what we can tell," said Tanya Kangas, the attorney who heads NORML's custody project. "The calls are starting to pour in, and each is worse than the last."In the past year, Kangas said, NORML has seen about 15 cases of women fighting government agencies for custody of their children because of positive marijuana tests. NORML advises the families, provides them with scientific data about the effects of marijuana use, and sometimes arranges for free legal representation.One overarching tenet drives the NORML project, Kangas said: "The government has no right to come in and destroy our families." Mere evidence of drug use, she added, is not enough to sever a parent's fundamental right to raise her own children."Constitutional rights are not to be ignored," Kangas said. "Harm must be demonstrated, and harm must be significant enough to outweigh the constitutional protection to the parent."In Massachusetts, that point was debated in a 1997 case known as "the Adoption of Katherine." The case involved a Middlesex County mother whose newborn tested positive for cocaine shortly after birth. The hospital informed the Department of Social Services, which took custody of both the newborn and an older child. Ironically, DSS had recently closed an earlier file on the family, saying the department had no concerns about the woman's care of the older child, said Carol Erskine, a Worcester attorney who worked on the case.The mother's lawyers argued that evidence that she had used drugs, without evidence of abuse or neglect, was not enough to terminate her right to raise her children. Nor was it enough to justify putting her children into a foster home.When the mother lost her case, she appealed to the Supreme Judicial Court. Erskine argued the appeal before the justices, who told her they were concerned about the fitness of a mother who had admitted to cocaine use."Where do you draw the line?" Erskine asked the court. "If someone smokes during pregnancy, then smokes after the child is born, are we going to remove that child, because we know it causes harm?"The justices said, 'But cocaine is illegal.' I said, 'Well, so is shoplifting, but we don't take those children away from their parents.'"Illegality isn't the issue," Erskine said in a recent interview. "The issue is, are these risky types of behavior?"In the end, the SJC ruled that drug use alone was not enough to declare a parent unfit. The court ordered that the case be reheard by the lower court. But by that time, Erskine said, the disheartened mother was reluctant to further disrupt the lives of her children, who had been in foster care for two years. She never showed up for her new court date, and the children were adopted.Such stories raise serious questions about whether doctors should take it upon themselves to report drug-using patients to government authorities."It's almost putting the doctor in a law enforcement role, because that office has chosen to report what they see as illegal drug abuse," said Sarah Wunsch, staff attorney for the American Civil Liberties Union of Massachusetts."For a medical doctor to be taking a position that a patient is not an adequate parent because of information he received in a drug screen is essentially bringing us to a society where doctors are acting as police," Erskine agreed. "They're the arbitrary decision-maker about what constitutes abuse and what doesn't constitute abuse."Indeed, such reporting policies can by nature be arbitrary. Callahan, the Greenfield doctor, said his office tries to drug screen all patients at least once during their pregnancy. "Then anybody that has a higher degree of suspicion we would test more frequently," he said.But what constitutes "suspicion" in a doctor's mind? A 1990 study in the New England Journal of Medicine found that black women were 10 times more likely to be tested for drugs after giving birth than white women, even though black and white women use drugs at roughly the same rate. The study also found that poor women were more likely to be tested.Not surprisingly, there is very little public sympathy for drug-using mothers. "Everyone thinks these women are totally evil, trying to hurt these babies," said Paltrow of the National Advocates for Pregnant Women.But, she noted, most drug-addicted pregnant women are battered and use drugs to escape from their domestic problems. Women who do try to kick their habits find that there is little help available. In 1991 the federal General Accounting Office found that the biggest barrier to women getting drug treatment was a lack of programs that take pregnant women and provide child care. In addition, Paltrow said, many programs won't accept Medicaid."None of what I'm saying is to say that pregnant women are victims and have no responsibility," she said. "But pregnant women who have substance abuse problems face enormous barriers to getting proper health treatment for themselves and their children."Paltrow, like many women's advocates, worries that mandatory drug testing will scare some women away -- particularly drug-addicted women, who need prenatal care the most. "Even if you don't care about women's rights, even if you don't care about privacy, if the only thing you care about is children's health, the last thing you would do is make women afraid to get prenatal care," she said."Physicians, in essence, will become responsible for the fact that infants were not receiving prenatal care," Erskine added. "To me, that violates the Hippocratic oath to 'do no harm'."Callahan could not estimate how often patients test positive for drugs, although he said it is "not rare." In fact, he said, his office's social worker is in touch with DSS officials at least once a month about some case of suspected abuse or neglect.Still, Callahan said he has never had a patient opt not to receive care from his office because of his drug testing policy. Of course, some of his patients may not be aware that they were being tested. Callahan acknowledged that for years he has run drug tests on patients who went into early labor. But he only began informing patients of the universal testing policy in the past 18 months."It got to be a point that we felt that it wasn't fair that we didn't warn people that it could be done," he said.Callahan said he does not believe the policy violated the requirement that patients give informed consent for drug testing."I think that part of it is questionable," he said. "If you're concerned about the effects on the unborn child and the children at home, there are some things we're required to do by law, and some things medically we need to do." In such cases, he said, he is following a state law that requires him to report cases of suspected abuse or neglect to DSS."If you think the health and safety of a child or a baby is jeopardized, you're required to report that," he said. "You don't need to have a positive test, you just need to be worried about it. Then it's up to DSS to determine if there's a problem."But some legal experts say that when a doctor decides to randomly test his patients, he's overstepping his legal requirements. According to Ernest Winsor, an attorney and member of the ACLU of Massachusetts' privacy committee, a doctor is required to report suspected abuse "when in talking something over with a patient it seems pretty clear that she's got the kid in the basement chained to a furnace, or is beating the kid, or depriving the kid of food. It's a long way to be secretly testing all of your OB/GYN patients and if you find anything in there, reporting them to DSS.""My civil-liberties brain has a problem with mandated reporting laws in the first place. To do it this way -- that doctor ought to quickly be set straight."While most patients assume that the information they share with their doctor is confidential, that's not necessarily the case. State medical boards may have confidentiality requirements, but those are not legal requirements. In fact, the Massachusetts Supreme Judicial Court has never held that the doctor-patient relationship is a privileged one, meaning that doctors aren't necessarily bound by confidentiality requirements.Still, Paltrow argues that doctors who opt to institute drug testing and reporting policies may be violating a federal drug treatment confidentiality statute. That law was passed in the 1960s, in recognition of the fact that drug users might avoid treatment if they feared that information they shared about their illegal drug use could be used against them.Under the law, drug treatment staff can't turn over patients' medical information to police without a special court order. The law was amended in the 1980s to allow health care providers to reveal information about child abuse, but it is still very strict, Paltrow said."Saying that you are taking tests to diagnose a substance abuse problem and then will divulge that to the authorities -- I believe that is a violation of that statute," she said.Crystal Landry doesn't need a federal law to convince her that mandatory drug testing is a violation of her privacy."It's like, you're pregnant, your rights are gone," she said. "You have a right as a patient to decide what kind of health care you get. They're not functioning as a medical unit -- they're functioning as a social service agency."Sitting on the floor of their living room, Landry and her husband ticked off a number of ways in which they believe Callahan's policy is inequitable, arbitrary and even hypocritical.First, there is the notion that drug use automatically makes someone a bad parent. "Someone smokes a joint one weekend and suddenly their kids are better off in foster care?" Scoot Landry asked. "How many people our age were brought up with parents who regularly smoked pot? I mean, Woodstock. It's crazy."Then there's the fact that Callahan does not test his patients for alcohol or tobacco, which are known to pose serious risks to a fetus. "That's the thing that drives me nuts," Crystal Landry said. "You can smoke a cigarette, which is the worst thing. What if you came in smelling like cigarettes? No problem?"(Callahan said his patients are counseled about the risks of smoking and drinking "from the get-go. But neither of those are illegal at the time.")The Landrys also are bothered that such drug testing policies are targeted directly at women. "What about me?" Scott Landry asked. "I could be sitting here doing crack, and that doesn't matter?"To Crystal, it comes down to the same "age-old question" that lies at the heart of the debate over legalized abortion: Does a woman's right to privacy and autonomy come before the rights of a fetus? "I think my health care rights should come before the rights of my fetus," she said.In the end, Landry stuck to her principles. She decided to stop seeing Callahan for health care, rather than submit to drug testing. Now three months pregnant, she has yet to see a doctor, as she hunts for one who does not have a mandatory drug testing policy.Callahan predicts it will be a difficult search. "If that office is honest," he said, "she'll find that the policy is pretty standard."


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