Prohibits drug, cannabis or alcohol testing of pregnant or postpartum individuals and newborns unless the individual consents and it is within the scope of medical care, or the testing is necessary for a medical emergency.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A860A
SPONSOR: Rosenthal TITLE OF BILL:
An act to amend the public health law, in relation to prohibiting drug,
cannabis or alcohol testing of pregnant or postpartum individuals and
newborns
PURPOSE:
This bill preserves the trust between a pregnant or perinatal person and
their healthcare provider by prohibiting drug testing without informed
consent.
SUMMARY OF SPECIFIC PROVISIONS:
Section one establishes the short title as the "Maternal Health, Digni-
ty, and Consent Act"
Section two amends the public health law by adding a new section 25&9-b,
which requires clear and informed consent from pregnant or postpartum
people regarding drug or alcohol tests of the pregnant or postpartum
person or of a newborn and defines "drug" and "drug or alcohol test"
Section three establishes the effective date.
AMENDED VERSION:
The "A" print removes the requirement for consent to verbal drug, canna-
bis or alcohol screen screenings.
JUSTIFICATION:
When a pregnant person comes to a hospital or medical provider seeking
medical care, there is an expectation that they will receive only
services to which they consent and seek. The involuntary or uninformed
drug testing of pregnant and perinatal persons not only runs counter to
this, but it serves as a disincentive to the pursuit of medical support
during pregnancy and childbirth. New York State currently ranks 30th
among all states with a maternal mortality rate of 25 deaths per 100,000
live births.
Pregnant persons who engage in substance use face significant barriers
to seeking treatment, general medical care, and prenatal care. Amongst
these barriers is the fear of judgment by healthcare providers, and more
importantly, the risk of a child protective services investigation, loss
of the child and/or criminal justice repercussions (1). In cases where a
doctor deems it necessary to perform an emergency drug test on an inca-
pacitated patient, unable to consent to such testing, it is equally
vital that the results of this testing be kept confidential and not used
for any purpose outside of medical diagnosis and treatment.
In addition to enhancing access to medical care, there is evidence that
proves that babies are safer as a result. New York City Health & Hospi-
tals, the largest municipal hospital system in the country, implemented
a policy in 2020 that requires informed consent for drug testing preg-
nant people and newborns. Since implementing the policy, there has been
an 80% drop in ACS investigations alleging parental drug use for mothers
of newborns; and a 90% drop for Black birthing people, as well as a 37%
drop in newborns removed by ACS (for any reason), meaning more newborns
stay with their family. Data did not show any negative impact on child
safety from the reduced number of ACS investigations.
This legislation also aligns New York Law with the Department of
Health's existing clinical guidelines for informed consent before drug
testing pregnant people (2). This bill would standardize those informed
consent practices across the state in line with these recommendations by
prohibiting physicians or other medical personnel from conducting drug
testing of a pregnant or perinatal person or their newborn without
informed consent being provided, unless such testing is necessary for
emergency purposes. This legislation will help to preserve the necessary
trust between a pregnant or perinatal person in need of medical care and
support, and their provider, and will remove a potential disincentive to
seeking care.
RACIAL AND SOCIAL JUSTICE IMPACT:
Pregnant individuals seeking medical care should not be exposed to crim-
inal or civil penalties or the risk of losing their child, particularly
when the existence of such potential penalties often serves as a disin-
centive to seek medical care. Rather, in order to reduce infant and
maternal mortality and to encourage the provision of proper medical
care, full informed consent regarding any drug or alcohol testing is
necessary. Resources should be provided by medical providers to reduce
harm and potential complications. It is crucial to recognize substance
abuse as a debilitating disorder, and not as criminal behavior.
The New York Advisory Committee to the U.S. Commission on Civil Rights
issued a report in May 2024 on Examining the New York Child Welfare
System and Its Impact on Black Children and Families (3). The Report
documented the numerous ways in which Black families in particular are
harmed by the manner in which the child protective system functions in
NYS. The Report also specifically recommended enactment of this bill as
a necessary step towards protecting Black families and children.
In 2026, the NYS Division of Human Rights issued a final order in the
New York Civil Liberty Union's favor in a case they brought in 2021 on
behalf of a woman who was non-consensually drug tested at Garnet Health
Medical Center (4). NYCLU argued that this was sex and pregnancy
discrimination under the NYS Human Rights Law and the Division agreed.
This is the first "court" in the country to find that drug testing some-
one because they are pregnant is sex discrimination. The passage of this
bill will ensure that New York State is not complicit in what is now
officially recognized as discriminatory practice.
LEGISLATIVE HISTORY:
SENATE:
2025: S845 (Salazar)- Referred to Women's Issues
2023-2024: S320B (Salazar) - Referred to Women's Issues
2021-2022: S4821A (Salazar)- Referred to Women's Issues
ASSEMBLY:
2025: A860 (Rosenthal)- Referred to Health
2023-2024: A109B (Rosenthal) - Referred to Health, Referred to Codes
2022: A4285A (Rosenthal)- Referred to Health, Referred to Codes,
Referred to Rules
2021: A4285A (Rosenthal)- Referred to Governmental Operations, Referred
to Health
2019-2020: A5478A (Rosenthal)- Referred to Governmental Operations
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
Immediately.
(1) https://sph.unc.edu/sphnews/prenatal -substance-use-linked -toinade-
quate-prenatal-perinatal-care/
2) https://www.health.ny.gov/diseases/aids/
consumers/prevention/oduh/docs/2 1749.pdf
(3) https://www. usccr.gov/reports/2024/ examining-new-york-childwel-
fare- system-and-its-impact-black-children-and- families
(4) https://www. nyclu.org/press-release/in-a-first-nys-division
-of-human- rightsrulesnonconsensual-drug-testing-of-pregnant-mother-is-
discrimination
STATE OF NEW YORK
________________________________________________________________________
860--A
2025-2026 Regular Sessions
IN ASSEMBLY(Prefiled)
January 8, 2025
___________
Introduced by M. of A. ROSENTHAL, FORREST, SEAWRIGHT, BICHOTTE HERMELYN,
CLARK, SIMON, JACKSON, MITAYNES, REYES, CRUZ, GONZALEZ-ROJAS, GALLAGH-
ER, SHIMSKY, LEVENBERG, DAVILA, TAPIA, KELLES, SHRESTHA, HEVESI,
R. CARROLL, OTIS, CUNNINGHAM, RAGA, BURDICK, DINOWITZ, WEPRIN, LAVINE,
MEEKS, ROMERO, TAYLOR, SAYEGH, ZINERMAN, DE LOS SANTOS, LUNSFORD,
SOLAGES, CHANDLER-WATERMAN, VALDEZ, SEPTIMO, KAY, PAULIN, HUNTER,
HOOKS, KIM, MORENO, WRIGHT, SIMONE, RAJKUMAR, BURROUGHS, LEE, WOERNER
-- read once and referred to the Committee on Health -- recommitted to
the Committee on Health in accordance with Assembly Rule 3, sec. 2 --
reported and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the public health law, in relation to prohibiting drug,
cannabis or alcohol testing of pregnant or postpartum individuals and
newborns
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Maternal Health, Dignity and Consent act".
3 § 2. The public health law is amended by adding a new section 2509-b
4 to read as follows:
5 § 2509-b. Drug, cannabis or alcohol testing for pregnant or postpartum
6 individuals; prohibited. 1. For purposes of this section:
7 (a) "drug" shall mean a controlled substance as that term is defined
8 in section thirty-three hundred six of this chapter.
9 (b) "cannabis" shall mean cannabis or concentrated cannabis as those
10 terms are defined in section 222.00 of the penal law.
11 (c) "drug, cannabis or alcohol test" shall mean a test using a biolog-
12 ical sample, including, but not limited to, urine or hair, for the pres-
13 ence of drugs, cannabis or alcohol.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00590-04-6
A. 860--A 2
1 2. No health care professional licensed, certified, or authorized
2 under title eight of the education law shall perform a drug, cannabis or
3 alcohol test on a person who is pregnant or up to one year postpartum
4 unless:
5 (a) the pregnant or postpartum individual gives prior written and oral
6 informed consent specific to the drug, cannabis or alcohol test; and
7 (b) the performance of the drug, cannabis or alcohol test is within
8 the scope of medical care being provided to the individual.
9 3. No health care professional licensed, certified or authorized under
10 title eight of the education law shall perform a drug, cannabis or alco-
11 hol test on a newborn unless:
12 (a) the individual authorized to consent for the newborn, as defined
13 by subdivision two of section twenty-five hundred four of this title,
14 gives prior written and oral informed consent specific to the drug,
15 cannabis or alcohol test; and
16 (b) the performance of the drug, cannabis or alcohol test is within
17 the scope of medical care being provided to the newborn.
18 4. Written and oral informed consent to a drug, cannabis or alcohol
19 test shall occur at the time of testing, in language understandable to
20 the pregnant or postpartum individual, or the individual authorized to
21 consent for the newborn, under circumstances that provide such individ-
22 ual sufficient opportunity to consider whether or not to authorize the
23 drug, cannabis or alcohol test and minimize the possibility of coercion
24 or undue influence, and shall consist of oral authorization and written
25 authorization that is dated, signed and includes the following:
26 (a) a statement explaining that consenting to a drug, cannabis or
27 alcohol test is voluntary and requires written and oral informed
28 consent, except when conditions under subdivision five of this section
29 are met;
30 (b) a statement that testing positive for drugs, cannabis or alcohol
31 could have legal consequences, including, but not limited to, a report
32 to a local child protective services agency, and that the individual may
33 want to consult with legal counsel prior to or after consenting to a
34 drug, cannabis or alcohol test;
35 (c) a statement explaining the extent of confidentiality of the test
36 results;
37 (d) a statement of the medical purpose of the test; and
38 (e) a general description of the test.
39 5. Drug, cannabis or alcohol testing may be performed without consent
40 of the patient or the individual authorized to consent for a newborn
41 when, in the health care professional's judgment, an emergency exists
42 and the patient or newborn is in immediate need of medical attention,
43 and an attempt to secure consent would result in delay of treatment that
44 could increase the risk to the patient's or newborn's life or health. In
45 the case that drug, cannabis or alcohol testing is performed under these
46 circumstances, the test results shall be discussed with the patient or
47 the individual authorized to consent for the newborn, in language under-
48 standable to the patient or individual authorized to consent for the
49 newborn and shall consist of oral notification and written notification
50 that is dated, signed and includes the following:
51 (a) a statement that testing positive for drugs, cannabis or alcohol
52 could have legal consequences, including but not limited to a potential
53 report to a local child protective services agency, and that the patient
54 or individual authorized to consent for the newborn may want to consult
55 with legal counsel;
A. 860--A 3
1 (b) a statement in the medical record with a description of the emer-
2 gency that necessitated unconsented drug, cannabis or alcohol testing;
3 and
4 (c) a statement explaining the extent of confidentiality of the test
5 results.
6 6. No health care professional licensed, certified, or authorized
7 under title eight of the education law shall refuse to treat a patient
8 who is pregnant or up to one year postpartum or a newborn because of the
9 patient's or individual authorized to consent for the newborn's refusal
10 to submit to a drug, cannabis or alcohol test.
11 7. Nothing in this section shall diminish any other requirement to
12 obtain informed consent for a drug, cannabis or alcohol test or any
13 other procedure.
14 § 3. This act shall take effect immediately.
