Hospital Mandates Universal Drug Testing of Pregnant Patients, Conducts Drug Tests Without Obtaining Informed Consent

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TRENTON – Attorney General Matthew J. Platkin and the Division on Civil Rights (DCR) announced today that they have filed a complaint in Superior Court against Virtua Health, Inc. (Virtua), and the network of hospitals it runs in Voorhees, Mount Holly, and Camden, New Jersey.  The complaint alleges that Virtua has discriminated against patients based on pregnancy and sex in violation of the New Jersey Law Against Discrimination (LAD), and that Virtua has violated patients’ fundamental right to privacy and New Jersey state law by not obtaining informed consent prior to subjecting them to mandatory drug testing.

The complaint filed today in Superior Court alleges that Virtua has had a policy since 2018 of universal drug testing for all pregnant patients arriving at its hospitals for inpatient admission to its Labor and Delivery or High-Risk Obstetrics Units.  As the complaint explains, Virtua has no comparable policy for non-pregnant patients being admitted to its hospitals for inpatient care, and Virtua does not subject any other category or class of patients to universal drug testing upon inpatient admission to its hospitals.

The complaint alleges that Virtua’s differential treatment of pregnant patients violates the LAD and that its mandatory drug testing policy causes significant harm to pregnant patients. As the complaint notes, accepted standards of medical care recommend against universal drug testing of pregnant patients, in part because of the high rate of false positive drug test results. And when Virtua’s mandatory testing results in a positive drug test for any pregnant patient, even when the positive test occurs only because the patient ate a poppy seed bagel, Virtua automatically reports them to the Division of Child Protection and Permanency (DCP&P) for possible child abuse or neglect.

In addition to Virtua’s mandatory drug testing policy, the complaint alleges that Virtua’s staff regularly fail to obtain informed consent from pregnant patients prior to administering a drug test. While Virtua’s drug testing policy mandates that hospital staff obtain informed consent from all pregnant patients prior to mandatory drug testing, in practice Virtua’s staff regularly deviate from that policy. DCR’s investigation revealed that multiple pregnant patients were subjected to Virtua’s mandatory drug testing without providing informed consent.

As alleged, Virtua’s practice of failing to obtain informed consent violates the LAD because Virtua does not maintain similar practices for non-pregnant patients. The complaint also seeks relief against Virtua under the New Jersey Civil Rights Act, alleging that Virtua’s conduct violates pregnant patients’ fundamental right to privacy and state law regarding informed consent.

“In parts of our country, the rights of pregnant individuals are being eroded. This action illustrates our commitment ensuring that doesn’t happen in New Jersey,” said Attorney General Platkin. “Whether it means preserving the right to reproductive freedom or ensuring that a pregnant person doesn’t undergo tests or procedures without their knowledge and consent, we will defend our residents’ rights.”

“Here in New Jersey, our civil rights laws safeguard the right to obtain reproductive health care without facing discrimination.  Make no mistake:  We will do everything in our power to protect that right,” said Sundeep Iyer, Director of the New Jersey Division on Civil Rights. “Virtua’s practices single out pregnant patients for mandatory drug testing without informed consent. As a result, patients are unnecessarily traumatized and fear they will lose their children mere hours after giving birth. Virtua’s practices violate our civil rights laws, and we look forward to proving our case in court.”

The Superior Court complaint filed today arose out of verified complaints filed with DCR by several pregnant women who gave birth at Virtua Voorhees Hospital. The ACLU of New Jersey represented one of the complainants, K.K., and filed a verified complaint with DCR on K.K.’s behalf.

The complaint describes the experience of two individuals, K.K. and B.C., who gave birth at Virtua Voorhees Hospital and were subject to Virtua’s mandatory drug testing policies. In both cases, the patients arrived at the hospital and were asked to give a urine sample.  Both had assumed that their urine samples would be used to test their protein levels, and neither was ever told that she was being drug tested. The drug tests for both women came back positive because both had eaten foods with poppy seeds, which can regularly generate positive urine drug test results for morphine or codeine.

Because of their positive drug tests, and because it is mandatory under state law to report positive drug test results for pregnant patients to DCP&P, Virtua reported these women – mothers of newborn babies – to DCP&P for possible child abuse or neglect less than 24 hours after they had given birth. Both patients – and their families – then endured months-long investigations while caring for their newborns. Such investigations can result in patients not receiving immediate clearance to take their newborns home with them from the hospital; unannounced home visits and interviews with the parent’s other minor children; and pregnant patients ultimately fearing that their newborn may be taken away from them.

The complaint filed today alleges that, as a result of Virtua’s universal drug testing policy, Virtua’s hospitals in Voorhees, Mount Holly, and Camden account for a disproportionately high share of statewide reports to DCP&P for possible child abuse. There are 46 hospitals in New Jersey that reported making referrals to DCP&P concerning substance-affected newborns. According to DCP&P data, however, the three Virtua hospitals in Voorhees, Mount Holly, and Camden collectively accounted for nearly one quarter of all such referrals to DCP&P statewide in 2021, 2022, and 2023.

For example, the complaint alleges that in 2022, these three Virtua hospitals collectively accounted for 24.2% of the reports DCP&P received of substance-affected newborns from hospitals statewide, even though New Jersey Department of Health data shows that these three hospitals accounted for only 9.4% of all hospitalizations for deliveries statewide.

The State seeks, among other things, an injunction to stop Virtua from requiring universal drug testing for pregnant patients, as well as civil penalties against the hospital system. The State also seeks compensatory damages to all aggrieved parties, including named and unnamed victims, for humiliation, emotional distress, and mental pain and anguish caused by Virtua’s discriminatory conduct.

The complaint filed today is the latest action taken by Attorney General Platkin and the Department of Law and Public Safety to protect the reproductive rights of New Jersey residents. In 2022, following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade’s constitutional right to an abortion, Attorney General Platkin created a Reproductive Rights Strike Force to safeguard reproductive rights in New Jersey. As part of this initiative, the Strike Force has coordinated the issuance of important guidance documents, each of which reinforce and operationalize the State’s commitment to reproductive freedom.

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DCR is represented in this matter by Division of Law Civil Rights Section Chief Nancy Trasande and Deputy Attorneys General Shefali Saxena and Sarah Nealon under the supervision of Assistant Attorney General Mayur Saxena and Deputy Director Sara M. Gregory of the Division of Law’s Affirmative Civil Enforcement Practice Group.  DCR’s investigation was conducted by Deputy Associate Director Danielle Thorne, Legal Specialists Rachel Fleig-Goldstein and Carlos Bellido, Supervising Investigator Carlene Future, and Investigator Jessica Peoples, under the direction of Deputy Director Rosemary DiSavino and Associate Director Malcolm Peyton-Cook.

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DCR is the state agency responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places of public accommodation (e.g., places open to the public like courts, schools, businesses, hospitals).  DCR enforces the LAD, the New Jersey Family Leave Act, and the Fair Chance in Housing Act.

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