Having a baby in some Alabama hospitals can mean getting tested for drugs without a woman’s consent—and winding up in jail for a positive result.

Alabama’s chemical endangerment law, in effect for nine years, spurred an investigation by ProPublica and AL.com into hospital drug-testing policies due to the law’s strict penalties.

A woman who tests positive for drugs in a hospital can be arrested. For just exposing their baby to drugs, the mother can receive a prison sentence of one to 10 years. If the baby shows signs of exposure or harm, the mom can go prison for 10 to 20 years. If the baby dies, the sentence can go up to 99 years.

Since the law was adopted in 2006, nearly 500 women have been charged with endangering their unborn children. Women who may have taken a sleeping pill a few days before giving birth have been swept up by the law, as have those who have falsely tested positive for drugs.

Many hospitals that comply with the law do not disclose their drug-testing policies, the investigation found. Nor do they ask for explicit consent or inform the women about the potential consequences of the testing.

The policy can cause women to avoid pre-natal care at hospitals or deliver babies elsewhere. “Criminal laws tend to make women less forthcoming,” Dr. Stephen Patrick, professor of pediatrics and health policy at Vanderbilt University School of Medicine said. “It doesn’t set up a place where people have the opportunity to engage with their providers honestly.”

Some hospitals single out women who have not had pre-natal care for drug tests. That tends to target poor women and those who live far from medical facilities in a state in which the number of hospitals providing obstetrical care has dropped by 60% since 1980.

AL.com and ProPublica reported that 42 of the 49 hospitals that deliver babies in Alabama declined to answer a questionnaire about testing policies. “Of the seven that did respond, three provided only partial information. Officials at several hospitals declined interview requests to explain why they didn’t want to answer the questionnaires,” Nina Martin and Amy Yurkanin wrote.

Women rights advocates have questioned the legality of the testing if patients are not being informed beforehand. “If hospitals are not informing their patients about what their drug-testing policies are, particularly when those results are used to involve law enforcement in their patients’ lives, that is an unconstitutional act,” Sara Ainsworth, director of legal advocacy for the New York–based National Advocates for Pregnant Women, told AL.com and ProPublica.


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