Infant Drug Testing in Texas


Infant holding an adult finger
Babies require special testing, but that should never come at the expense of their mother’s basic right

When a baby is born they are subjected to a wide array of tests to ensure that they are in optimal health. The tests also serve as an early warning should the baby have any of the conditions being tested for, meaning the doctor can begin treatment as early as possible.

Among the tests a newborn must undergo, testing for drugs is not among those required by the State of Texas. This does not mean that mothers of infants cannot be found guilty of substance abuse while pregnant or nursing. In fact, using while pregnant is considered child abuse. The consequences for this are complicated and change from situation to situation.


Are there consequences for prenatal drug use in Texas? 

There are consequences, as can be attested by the sum of women who have been arrested for substance abuse crimes while pregnant. The law isn’t as cut and dry as crime and punishment, thanks to former Governor Rick Perry, who passed into law that any attack on an unborn child “in any stage of gestation” is to be considered a crime on a living person. An example of this would be if a pregnant woman was killed in a car accident, the person at fault would be charged with the death of two people.

The thing about Governor Perry’s law was that it went directly against Roe v Wade, and so had to be amended to exclude pregnant women causing harm to their own fetus and doctors providing safe and legal abortions. 


Can doctors require an infant drug test in Texas?

The supreme court ruled in 2000 in FERGUSON et al. v. CITY OF CHARLESTON et al. that taking non-consensual drug tests from women and sharing the results with law enforcement violates the woman’s fourth amendment rights. The court decided that pregnant women, even women suspected of abusing substances, are to be treated as competent adults regarding their healthcare rights.   

These rights should extend to their child, which should not be tested without the parent’s consent. 

Law enforcement has found ways of working around this ruling by allowing the arrest of pregnant women for suspected drug charges and stating that responsible parties are responsible for reporting suspected substance abuse to law enforcement. This can lead to infants being placed in foster care and new mothers being put in state prison. 


Controlled substances that could lead to charges

A good rule of thumb for what’s illegal to take while pregnant is to look at what substances are already illegal, then add alcohol, nicotine, and any prescription drugs your doctor won’t prescribe. That makes a loose list of:


  • Methamphetamine
  • Other amphetamines
  • Ecstasy
  • LSD
  • Marijuana
  • Heroin
  • Cocaine
  • Opioids (prescription or otherwise)
  • Nicotine
  • Alcohol


The pros and cons of not requiring testing

The law not requiring testing benefits to women because doctors and law enforcement are not allowed to violate the privacy of mothers. If the doctors and/or law enforcement do the tests without consent, then the mother can claim damages. If the finds the doctor and/or law enforcement are guilty of wrongdoing, the mother can potentially return to her life.

The downside of not requiring testing is that much of the reporting is on the basis of assumption and profiling. This can lead to wrongful accusations and can ruin the lives of mothers and children alike. 

If you are a mother who has been accused of drug crimes, you will need as much help as you can get. The lawyers at the Law Office of Case J. Darwin know Texas drug laws and will defend you and your family. Contact us for a consultation today.

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