Shakira Kennedy was 27 years old and living in Brooklyn when she found out she was going to have twins. While many women experience morning sickness in their first trimester, Kennedy’s unrelenting cycle of nausea and vomiting was so severe that she ended up in the emergency room multiple times throughout her pregnancy. She was treated for a slew of health issues, including dehydration and an inability to keep food down.
“I must have lost over 30 to 40 pounds in my first trimester,” says Kennedy.
Her body was completely depleted, so much so that she even passed out once on the train while taking her six-year-old daughter to school. She cycled through numerous prescription medications and dabbled in all kinds of over-the-counter fixes, but nothing worked. Desperate for relief that would still allow her to function as a parent, Kennedy turned to cannabis.
She had used it recreationally when she was younger and found it helped with various ailments — from lack of appetite to constipation — and hoped it could now be helpful in treating the barrage of symptoms associated with pregnancy. With New York medical marijuana licenses typically reserved for those with cancer or chronic illnesses, Kennedy sourced her weed through the illegal market. She used it, and it helped.
“It was literally the last resort,” she says.
At one of Kennedy’s prenatal visits, she admitted having used marijuana to help manage her debilitating symptoms. She was drug-tested and the results came back positive. Kennedy was told the test would be recorded in her medical file, and she thought that would be the extent of the fallout.
Yet when she returned to the hospital to deliver her twins a few months later, her babies were drug-tested for a range of substances, from cocaine to methamphetamine. According to the one-sheet test results reviewed by Rolling Stone, both infants came back negative for cannabinoids — as well as every other drug.
“I thought this would be an open and shut case,” she says.
In March of this year, though, the New York Administration for Children’s Services (ACS) filed a neglect petition against Kennedy in Brooklyn Family Court, alleging that she used marijuana while pregnant with her twins and caring for her daughter. Kennedy was ordered to undergo a substance abuse evaluation and ongoing random drug screens, says Jessica Marcus, an attorney at Brooklyn Defender Services, the firm that represented Kennedy in her case. She’s also been subjected to home inspections by ACS, and asked to attend a drug treatment program as well as a parenting class.
According to the legal definition of neglect in New York State, there must be evidence of not just occasional drug use, but drug misuse. In fact, this misuse must be accompanied by, “proof that a person repeatedly misuses a drug … to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality.”
While ACS declined to comment on Kennedy’s specific case, a spokesperson for the department says it investigates about 60,000 reports of abuse or neglect in New York City every year, including 11,000 cases that involve allegations of substance abuse.
“The law is clear that just one positive test for drugs is not enough,” Marcus says. Yet for many pregnant women or new moms, they’re finding themselves caught up in the child services system on much less.
With medical and adult-use cannabis now legal in more than half of the country, situations like Kennedy’s will become increasingly common. Cannabis use among pregnant women has increased, based on a survey of more than 300,000 women published in the Journal of the American Medical Association in December 2017. According to that survey, Marijuana is now the “most commonly used illicit drug during pregnancy,” and from 2009 to 2016, prenatal use increased from 4.2 percent to 7.1 percent. Many women who consume cannabis continue the habit into pregnancy; some say it helps ease nausea or combat anxiety, and according to the American College of Obstetricians and Gynecologists (ACOG), use is only likely to continue to increase alongside legalization.
So while data shows maternity cannabis use is on the rise, there’s a lot unknown about the safety of the practice because there’s an extremely limited pool of research on it. While studies have shown that delta 9-tetrahydrocannabinol (THC) can enter the fetal bloodstream, what happens from there — in terms of long-term effects on the actual baby — are still largely up for debate.
Many doctors encourage women to err on the side of caution and, as is par for the course in terms of pregnancy advice, ingest as few questionable substances as possible. Others point to recent articles, like a 2016 piece published in Obstetrics & Gynecology, which found that medical marijuana use during pregnancy is “not an independent risk factor for adverse neonatal outcomes” such as low weight and preterm birth, and emphasize that even if there are dangers, they are dramatically less severe than those associated with alcohol or opioid use.
With conflicting science on the subject, the jury is still out on the quantifiable dangers of marijuana use during pregnancy.
According to Carl Hart, a psychology professor at Columbia University and expert on drug use and addiction, available data indicates that marijuana has virtually no impact on babies’ abilities to think, make decisions, and problem solve.
“From what I have seen there have been no demonstrated cognitive impacts,” said Hart. “I can say that with fairly good confidence.”
He cites a 1991 study from Jamaica. In it, researchers followed 59 children through the first five years of their life; half of them came from mothers who consumed marijuana during pregnancy. Starting when they were one-day-old and continuing sporadic evaluation until they reached five years, researchers — using standardized models for assessment — found “no significant differences in developmental testing outcomes between children of marijuana-using and non-using mothers.”
“When I see people or hear people saying that mothers put their children in jeopardy by using marijuana, there’s simply no evidence to support that data,” said Hart.
There are limits on the quality of existing research because often, studies are either conducted on animals or, when involving actual people, can be convoluted by lifestyle differences or the use of multiple drugs. Still, the ACOG cites “worrisome” findings that indicate possible impaired neurodevelopment of the fetus, and the group discourages doctors from promoting medical marijuana use in pregnancy because the drug has no standardized dosing and isn’t regulated by the Food and Drug Administration. In addition, studies have shown that exposure to weed in the womb can negatively impact motor skills, increase the risk of stillbirth and may even impact brain development, Dr. Dana Gossett, an OB/GYN and University of California, San Francisco professor, told NPR.
While researchers remain divided on the impact of cannabis use on a developing fetus, there is at least one proven danger of the drug; its capacity to trigger family services. “The main risk of cannabis use in pregnancy is child welfare,” says Mishka Terplan, an OBGYN who teaches at Virginia Commonwealth University, who is an expert in opioids.
While marijuana use stretches across all economic and racial groups — in both pregnancy and beyond — it’s poor, minority women who are prosecuted “almost exclusively” for the offense, says Marcus, attorney at Brooklyn Defender Services. Existing guidelines on which women and newborns to drug test vary wildly from state to state and even hospital to hospital. Often classified as “risk indicators,” these factors are really just associations that could easily be indicative of many other things, says Joelle Puccio, a travel nurse who fills staffing needs at hospitals across the country. For example, there are many reasons women may not have had comprehensive prenatal care — from living too far from a doctor to being stuck in an abusive relationship — and “all of them have to do with decreased privilege,” she says. If hospital guidelines are skewed, directing the brunt of drug testing at minority demographics, the results will be skewed as well.
“If you test more people who are poor or brown or unmarried, you’re going to find more people [using drugs] who are poor or brown or unmarried,” she says. Once mothers flag the attention of child welfare services — for whatever reason — it can be a steep climb out from under the microscope.
Even in states like California where marijuana is legal, consuming it can still be used as a reason to threaten parental rights, says Emily Berger, a senior attorney with the non-profit Los Angeles Dependency Lawyers.
“In some ways, this legality issue is a red herring,” said Berger. “The legal standard is, ‘how is this use creating a [danger] to a child,’ – what is the nexus? Is this use, or is this abuse?”
While the definition or threshold for neglect changes state-to-state, deciding who to drug test is often based on subjective evaluations made at the discretion of medical staff, says attorney Marcus, leaving room for the influence of subconscious stereotyping. This may be why most of her firm’s cases that originate from a positive drug test at birth, come from public hospitals located in low-income neighborhoods.
“They just seem to have a more suspicious attitude towards their patients, again perhaps because of implicit bias,” Marcus wrote in an email. “The cases that are called in by private hospitals are also more likely to be against poor women (whose income level is usually known to hospital staff because they receive Medicaid) and women of color, again suggesting implicit bias.”
Prenatal and postpartum drug testing is rarely conducted on all obstetrics patients that enter a hospital; it’s cumbersome, expensive and as some see it, unnecessary. Some hospitals — such as the upscale, Beverly Hills-based Cedars-Sinai Medical Center — work off a baseline obstetrics policy in which no mother is required to be tested. Others, like the public system of Los Angeles County, have no “written policies or procedures for when pregnant or antepartum women receive tox screening” and leave it up to doctors to determine when to order a drug test, says Brandi Miles Moore, health services principal deputy county counsel, in an email.
Across the country, the New York Health and Hospitals Corporation — which operates 11 public hospitals in New York City — released a corporate policy in 2014 that outlines criteria for “screening and testing at-risk pregnant women and newborns for alcohol abuse and exposure to other drugs during pregnancy.” Included is a list of “risk indicators” to consider, including minimal or no prenatal care, a history of substance abuse or treatment within the previous three months, placental abruption and severe mood swings.
Generally speaking, a list like this would perpetuate stigma and selective screening is not recommended in most contexts, says ACOG’s Terplan.
Robert de Luna, a spokesperson for New York Health and Hospitals Corp., tells Rolling Stone that they their approach isn’t “punitive” and that they are “always aware of the potential for stigma,” and doing everything they can to eliminate it. They do this in a variety of ways, he says, including reassuring patients of their privacy in an attempt to encourage them to speak openly, and by training hospital staff on issues like implicit bias and how to address subconscious cues, says de Luna.
“In using clinical terms, we help our patients know that our interest is strictly health-related, without judgment,” he says in an email.
However, for one expectant mother on the East Coast, speaking openly with her doctor was the very thing that threatened to tear apart her family.
Angela was eight months pregnant and living in Colorado with her husband Chris and their two-year-old son when they uprooted to Massachusetts to care for Angela’s sick mother. (Rolling Stone is using the family’s first names only to protect their privacy.) They settled in quickly; the family found a place to stay, Chris landed a local job, and with Angela’s due date just weeks away, prepared for their scheduled C-Section. On a hospital intake form, Angela disclosed her marijuana use — which she said helped treat her anxiety — as she and her husband wanted to be honest with doctors in order to receive the most appropriate care possible.
After all, while federally illegal, recreational marijuana was legal to possess, consume and purchase in Massachusetts at this time, and medical was comprehensively legalized as well.
Angela’s decision to be transparent would ultimately result in a widespread ripple effect, as shortly after their daughter was born in August 2017, a social worker paid them a visit. Chris says they were told that because marijuana is a Schedule One drug — in the same class as heroin and LSD — the state would be reviewing their case. The social worker also commented that she “better hope” no other illicit drugs surfaced in the forthcoming drug test.
“To be made to feel like a criminal after giving birth — if I was a different person this could have spiraled me into a very dark place,” said Angela.
Medical staff proceeded to take a meconium and urine sample from the baby, but didn’t explain what they’d be used for, Angela says. They never signed a consent form for testing, she says, and were upset about the painfulness of the urine test, which involves taping a collection bag to the child’s labia.
One of the newborn’s samples came back positive for marijuana. She became the nurses’ “marijuana case,” says Angela.
“Once all the nurses knew, it was like, this whole different air they treated me with,” she says.
In the months that followed, Angela and Chris received numerous home visits from the Department of Children and Families and were consistently concerned about losing their children to the system. This exacerbated what was already a high-stress period for the family, who was coping with the death of Angela’s mom, the birth of a new baby and financial distress from moving across country and paying rent in two states, explains Chris.
“We were just dealing day to day, moment to moment, with what came up, not knowing how our lives would unfold, where we would ultimately live, or how or if our family would be torn apart,” he says.
Back in New York, Shakira Kennedy’s case was officially dismissed on September 14th, but her experience with New York’s Administration for Children’s Services has threatened her own health, employment and relationship with her partner, she says. It’s also changed the way she thinks of medical staff.
“You can’t even be honest with your own doctor, it’s like your permanent record now,” says Kennedy. “God forbid I go have children again — and I love children — I’m going to go through this whole process again
Child welfare systems have long used claims of drug use to intervene in families’ lives,says Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, a non-profit that provides legal help to people threatened with criminal or civil prosecution related to pregnancy, abortion or birth.
While professional industry standards indicate that women seeking obstetric or gynecologic care should be able to drug-tested for the purpose of monitoring addiction and seeking treatment, once that report is submitted, it is largely out of the doctor’s hands. So while prenatal care may help identify conditions like diabetes or high blood pressure, in large part it is simply “surveillance,” says Paltrow. Her organization will always encourage women to seek medical care during pregnancy, but they have begun advising women in some states to consult with a lawyer before sharing any information about drug or alcohol use.
“I think increasingly that should be our advice,” she says.
At a national level, organizations like The American College of Obstetricians and Gynecologists attempt to guide responsible medical behavior by issuing guidelines for urine drug testing that dictate the practice should not be used as a coercive measure or a form of punishment. The test is also not intended as yardstick for measuring new moms; “there’s nothing in a urine drug test that tells you anything about behavior,” says ACOG’s Terplan. “It’s not a motherhood test.”