Question:
You are given the full text of a scientific research paper.

    Summarize the paper's key **research findings** in the style of a policy brief. Your response should:
    - Focus on the major empirical or model-based results
    - Present findings that are policy-relevant and supported by the study
    - Use concise, non-technical language with essential technical terms as needed
    - Avoid quoting directly or summarizing minor details

    Write a short, clear paragraph appropriate for the “Scientific Research Findings” section of a policy brief.

    Scientific Research Paper:
    https://doi.org/10.1177/00221465211058152
Journal of Health and Social Behavior
2022, Vol. 63(2) 162–176
© American Sociological Association 2021
DOI: 10.1177/00221465211058152
jhsb.sagepub.com
Article
Women have long been targeted as a special popula-
tion in law and drug policy and are often subject to
distinct forms of coercive disciplining for their sub-
stance use (Campbell 2002). Pregnant substance
users are uniquely exposed to competing medical
and legal responses while receiving pregnancy-
related health care. Despite recent, louder prescrip-
tions to treat addiction as a disease (Pew Research
Center 2014), pregnant and postpartum substance
users continue to experience extraclinical interven-
tions such as criminal prosecution and child welfare
interventions (Paltrow and Flavin 2013). State man-
datory reporting laws and child abuse statutes that
codify substance use during pregnancy as child mal-
treatment create a statutory environment that
empowers practitioners to investigate their patients
for suspected illegal activity. Recent estimates indi-
cate that tens of thousands of women a year are sub-
ject to child welfare investigations after medical staff
identify and report them to the state for prenatal sub-
stance use (U.S. Department of Health and Human
Services 2021).1 This article examines the blending
of medical and legal approaches in perinatal care
through an analysis of medical professionals’
justifications and rationales for drug testing pregnant
patients. Expanding current understandings of the
relationship between medicalization and criminaliza-
tion processes, this study reveals the mechanisms that
enable medical providers to engage in investigatory
work in the clinic. I also discuss the consequences of
medico–legal hybridity, whereby criminal–legal
logics get taken up in medical practice in such a way
that medical routines, practices, and interactions
become a form of criminalization.
Despite media coverage and numerous legal com-
mentaries on the topic of the criminalization of preg-
nant substance users, there are few empirical accounts
of this process (Paltrow and Flavin 2013; Stone
2015). This study elucidates a process about which
we currently know little: how criminal–legal logics
guide medical actors’ decision-making processes in
1058152 HSBXXX10.1177/00221465211058152Journal of Health and Social BehaviorMcCabe
research-article2021
1University of Notre Dame, Notre Dame, IN, USA
Corresponding Author:
Katharine McCabe, Reilly Center for Science,
Technology, and Values, University of Notre Dame, 436
Geddes Hall, Notre Dame, IN 46556, USA.
Email: kmccabe6@nd.edu
Criminalization of Care: Drug
Testing Pregnant Patients
Katharine McCabe1
Abstract
This article reveals how law and legal interests transform medicine. Drawing on qualitative interviews
with medical professionals, this study shows how providers mobilize law and engage in investigatory
work as they deliver care. Using the case of drug testing pregnant patients, I examine three mechanisms
by which medico-legal hybridity occurs in clinical settings. The first mechanism, clinicalization, describes
how forensic tools and methods are cast in clinical terminology, effectively cloaking their forensic intent.
In the second, medical professionals informally rank the riskiness of illicit substances using both medical
and criminal-legal assessments. The third mechanism describes how gender, race, and class inform forensic
decision-making and criminal suspicion in maternal health. The findings show that by straddling both
medical and legal domains, medicine conforms to the standards and norms of neither institution while also
suspending meaningful rights for patients seeking care.
Keywords
criminalization, drug testing, intersectionality, maternal substance use, provider bias

McCabe
163
hypermedicalized perinatal care settings. Drawing on
insights from medical sociology and socio–legal
studies, this research examines an important site of
transformation where the lines between medical care
and legal intervention significantly blur, resulting in a
loss of rights and protections for patients and fore-
closing a site of possible institutional support for
women who use substances.
Background
Drug Testing Pregnant Patients
Drug testing is a familiar phenomenon. Most adults
in the United States will be drug tested in their life-
times—as a job applicant; while serving in the mili-
tary, attending school, or playing competitive sports;
or perhaps through a routinized system of surveil-
lance, such as a substance treatment program or as a
requirement for probation. Drug testing technolo-
gies have been available for over 60 years (Reynolds
2005). In the 1980s, the passage of federal guide-
lines for drug testing employees resulted in the cre-
ation of numerous safeguards for test subjects,
including forensic testing standards, specimen-
handling procedures, confirmatory testing require-
ments, and confidentiality guidelines (Substance
Abuse and Mental Health Services Administration
[SAMHSA] 2012).
Drug testing in clinical settings has emerged
outside of the jurisdiction of federal regulations that
guide employment testing. Clinical drug testing is
notably less sophisticated and less transparent than
workplace testing (SAMHSA 2012; Warner,
Walker, and Friedmann 2003). In clinical settings,
forensic standards like “chain of custody” protocol
(i.e., protocol for handling biological specimens to
meet legal evidentiary standards) are not routinely
followed, patients are often not informed that their
biological material will be tested, and confirmatory
testing is rarely carried out to rule out testing errors
(Jarvis et al. 2017; Warner et al. 2003). Unlike fed-
eral workplace drug testing standards, there are no
widely applied standards governing clinical drug
testing that ensure that clinical testing is nondis-
criminatory, well regulated, consensual, or confi-
dential (Jarvis et al. 2017; SAMHSA 2012; Warner
et al. 2003).
Drug testing pregnant patients exists in this
unstandardized and unregulated context. Drug testing
patients and their newborns is a routine practice in
perinatal care (American College of Obstetricians
and Gynecologists [ACOG] 2017; Terplan and
Minkoff 2017). However, drug tests are not clinical
diagnostic tools (ACOG 2017; Moeller, Lee, and
Kissack 2008; SAMHSA 2012; Warner et al. 2003),
nor do they predict future maltreatment of offspring
(Wood 2006). For pregnant patients, the risks associ-
ated with being drug tested in the hospital are incom-
parable to other populations and other testing
scenarios. For instance, job applicants drug tested by
employers do not risk having their children removed
from their care if they test positive, whereas simply
entering a prenatal clinic to receive care exposes
patients to the threat of intervention by outside
authorities. This criminal–legal exposure is explicitly
sexed (i.e., cis-men are not exposed to the same risk
of being investigated for child abuse for a positive
drug test while receiving care in clinical settings). The
American College of Obstetricians and Gynecologists
(ACOG) has authored statements discouraging medi-
cal staff from conducting urine drug tests on pregnant
patients (ACOG 2017) and has warned that such test-
ing may result in clinicians acting as “agents of law
enforcement” (ACOG 2020) and in women avoiding
prenatal care for fear of losing custody of their chil-
dren or being criminally prosecuted (ACOG 2011).
The history of how pregnant substance users
became targets of this facet of the “war on drugs”
has its antecedents in the crack cocaine crisis of the
1980s and 1990s. At the height of the social panic
around crack cocaine, media portrayals and scien-
tific research promoted the notion that crack
cocaine was exceptionally destructive (Reinarman
and Levine 2004) and that pregnant crack users
were inflicting irreparable damage on their off-
spring (Roberts 1999). These campaigns relied on
racist stereotypes and images that cast black repro-
duction as causally linked to social disorganization
and community disadvantage (Collins 1989;
Roberts 1999). As a result, black mothers experi-
enced disproportionate drug testing in hospitals and
reporting to child welfare services (Chasnoff,
Landress, and Barrett 1990; Roberts 2002). Early
forecasts about the exceptional effects of crack
cocaine exposure have since proven to be scientifi-
cally inaccurate and hyperbolic (Hurt et al. 2009),
yet the initial reactions created enduring path
dependencies between punitive, extraclinical sys-
tems and reproductive health care (Bridges 2019).
Medical systems and child protective systems
are linked through federal policy and state laws. The
Child Abuse Prevention and Treatment Act
(CAPTA), a federal spending provision for state
child protection services, requires that health care
providers notify state child protective agencies
when infants are born substance affected. However,
CAPTA does not direct medical staff to actively

164
Journal of Health and Social Behavior 63(2)
search for evidence that their patients use illicit sub-
stances, nor does it encourage states to classify illicit
substance use as child maltreatment (National
Advocates for Pregnant Women 2018). Twenty-
three states and the District of Columbia have gone
beyond federal guidelines by amending their civil
state statutes to include substance use during preg-
nancy as a form of child maltreatment (Guttmacher
Institute 2021). The state of Illinois, where this
study was conducted, classifies evidence of a con-
trolled substance in the blood, urine, or meconium
(first stool) of a newborn infant as child neglect
(Illinois Abused and Neglected Child Act 1975).
Federal and state laws establish a baseline for state
intervention at birth, but drug testing and reporting
practices vary drastically not only by state but
within states, municipalities, and hospitals (Drescher-
Burke and Price 2005; Miller et al. 2014).
Although the policy and legal landscape encour-
age providers to assume an active role in detecting
and reporting patients on behalf of the state, the
uptake of legal tasks in medicine cannot solely be
understood as driven by “law from on high.” The
penetration of law into medicine is uneven and con-
tingent on institutional arrangements and profes-
sional prerogatives (Heimer 1999). There are
myriad reasons that clinicians may be reluctant to
report suspected child abuse, including a lack of
knowledge of state laws, concerns about patient
retention, and previous poor interactions with child
protective services (Gunn, Hickson, and Cooper
2005; Vulliamy and Sullivan 2000). On the other
hand, maternal and newborn care providers may be
particularly receptive to prenatal drug use laws and
perceive the state as a useful partner in managing
“difficult” patients (Abel and Kruger 2002; Heimer
1999). Law empowers and informs medical prac-
tices, but it is not wholly determinative. In most set-
tings (barring settings with universal testing
protocol), provider discretion determines whether
patients will be tested and reported to the state.
Medico–Legal Hybridity in Health Care
One neglected area this study highlights is the ways
in which actors within hospital settings are engaged
in processes of managing patients through punitive
state systems. The limited evidence available sug-
gests that law enforcement and child welfare systems
are more frequently called on to intervene in health
care interactions in public facilities that serve racially
diverse and low-income populations (Bridges 2011;
Lara-Millán 2014). Medical systems are key not just
in the referral process—the process of identifying
and reporting women to child welfare services—but
medicine is transformed through interactions with the
state, becoming a site of criminalization in and of
itself. Although much of the literature to date exam-
ines the intersections of medicalization and criminal-
ization processes within sites that are often explicitly
disciplinary, e.g., semicarceral settings (Haney 2010),
drug courts (Tiger 2012), and mandated rehab
(McKim 2014), this research shows how criminal–
legal logics and tasks also get taken up within
staunchly medicalized settings.
Prior work on medico–legal hybridity focuses
on jurisdictional skirmishes between medical and
legal domains. Timmermans and Gabe (2002) theo-
rize that different “borderland” scenarios emerge in
response to medico–legal conflict. In some scenar-
ios, medical and legal domains jockey for power
and predominance over one another, in others, a
form of semipermanent hybridity or a “third way”
emerges wherein something new is produced either
through a blending or a rejection of methods from
both sides (Timmermans and Gabe 2002). Elizabeth
Chiarello (2015) shows that in hybrid environ-
ments, where frontline workers engage in medical
and legal work, workers both embrace and eschew
their discretionary power to enforce the law because
it may strain their relationships with their patients
or disturb their sense of identity as healers. One
example of embracing and eschewing discretion is
through a process referred to as “channeling,” in
which workers use their discretion to select which
patients will be moved through the “pipeline” from
medical to legal domains (Chiarello and Morrill
2020).
Maternal and infant care providers do not neces-
sarily see themselves as working for the state, nor
are they trained in forensic methods. Therefore, dis-
covering how and why these professionals become
engaged in investigatory work is essential to under-
standing how legal interests get picked up and cir-
culate within medicine. The question arises: What
motivates providers to drug test their patients and
expose them to significant state involvement? One
way that providers may contend with the contradic-
tions of medico–legal hybridity is through the pro-
cess of channeling patients who are deemed
irremediable by medical means to more intensive
and coercive fields of management such as child
welfare systems. Kelley Fong (2020) observes that
reporting professionals like health care workers fre-
quently call on child welfare not in response to spe-
cific child maltreatment but, rather, in a paternalistic
attempt to rehabilitate indigent families and engage
the state in their oversight.

McCabe
165
Strategies used to manage substance-using
women are rooted in anxieties about gender and
race that frame understandings of responsible
reproduction and self-governance. Women’s sub-
stance use threatens gendered expectations regard-
ing social reproduction, self-responsibility, and
responsibility to dependent others (Campbell 2002).
However, gender, race, and class operate together
to shape representations of “ideal motherhood,” and
the reproduction of women of color is more likely
to be policed through the state’s criminal–legal
and child welfare systems (Roberts 1999, 2002).
Medical actors’ routine engagement with child
welfare systems may heighten raced, classed, and
gendered evaluations of potential parenting quality
as providers grapple with the power to investigate
and report patients based on criminal–legal
suspicion.
This article considers how law is mobilized by
health care workers and reveals that medicine
accommodates law but not without significantly dis-
torting medical routines, rationality, and norms.
Building off the concept of channeling (Chiarello
and Morrill 2020), I show that providers do not sim-
ply refer patients to outside authorities who will
police them; rather, the very existence of a pipeline
transforms the provision of care in such a way that
clinicians engage in policing and enforcement them-
selves. The following analysis uses interview data to
detail three mechanisms that enable medical profes-
sionals to engage in forensic investigatory work: (1)
clinicalization—applying clinical terms, definitions,
and routines to forensic approaches; (2) negotiating
competing risk frameworks—the tendency to swap
medical risk calculations for legal risk assessments
in the face of uncertainty; and (3) discretionary
suspicion—drawing on racial, classed, and gendered
notions of “respectable motherhood” (Sweet 2019)
to target patients for or protect patients from investi-
gation. These mechanisms reveal that criminaliza-
tion processes are integrated into care in subtle and
sometimes covert ways. This less than obvious inte-
gration enables forensic work to take place in clini-
cal settings in a routine and unremarkable manner.
This study illuminates the transformation of
contemporary medical authority. Prior theoretical
work suggested that medicalization—or the trans-
formation of social problems into medical conditions—
was the primary way that medicine expanded its
jurisdiction (Conrad 2007). However, these find-
ings show that medico–legal hybridity broadens
physicians’ scope of practice and authority over
patients. The consequences of hybridity in perinatal
care are troubling. By straddling care and legal
enforcement, clinically initiated investigations cre-
ate a new form of “structural vulnerability”
(Bourgois et  al. 2017) for patients who, through
interactions with providers, are denied normative
medical care and are exposed to legal interventions
without basic legal protections.
Data and Methods
These data were derived from a larger qualitative
study examining multisystem collaboration in
response to perinatal substance use in Chicago,
Illinois, and included in-depth interviews with
frontline workers and stakeholders (N = 71) and
interviews with local women who had experienced
child welfare interventions at the birth of their chil-
dren (N = 28). Although these data informed this
analysis, the findings presented here are a subset of
in-depth qualitative interviews conducted with 30
medical providers in the Chicago area. To recruit
medical professionals who had knowledge of insti-
tutional responses to perinatal substance use, I
employed a purposive sampling and snowball
approach. I selected five hospitals in the Chicago
area as recruitment sites. These sites were selected
because they served distinct patient populations (in
terms of race-ethnicity and class status) and included
one safety net hospital, one teaching hospital, two
private hospitals, and one small community hospi-
tal. Each hospital had publicly available contact
information for their obstetric and neonatal physi-
cians. I sent emails to providers whose contact
information was accessible (N = 116) to invite them
to participate in an interview about their “observa-
tions and experiences working with” substance-
using patients. The email recruitment resulted in
21 participants agreeing to meet for an interview.
An additional 9 participants were subsequently
recruited via snowball sampling, for a total of 30
interviews (see Table 1 for sample characteristics).
The resulting sample of providers was heteroge-
neous. Through snowball sampling, I was able to
home in on actors who were known within their
institutions to have knowledge and experience
working with substance-using patients (e.g., clini-
cians with a special interest in perinatal substance
use or perinatal social workers who were often
responsible for making hotline calls to child wel-
fare and communicating with patients after they
have been tested). None of the hospitals in this sam-
ple had instituted formal universal screening proto-
col, and all of the providers in this sample discussed
drug testing as a discretionary process. These find-
ings are not intended to generalize to any one group

166
Journal of Health and Social Behavior 63(2)
of professionals or setting. The benefit of a diverse
sample is that it provides various professional van-
tage points at different points of care to reveal the
effect of hybridity on decision-making processes
that may be transferable to the study of other pro-
fessional groups, institutions, or social problems
spanning medical and legal institutions.
I conducted semistructured interviews in person
and over the phone (eight individuals were unable
to meet in person) that lasted on average 45 minutes
to an hour, with the longest interview spanning over
3 hours. The interview schedule centered around
the provision of care for substance-using patients,
including questions regarding how substance use
was determined, drug screening and testing prac-
tices, hospital procedures and treatment protocol,
professionals’ attitudes toward substance-using
patients, medical interventions for maternal sub-
stance use, and child welfare involvement.
Interviews were recorded and transcribed verba-
tim. Data were coded and analyzed using Atlas.ti.
Participants were given pseudonyms to protect their
identity. Data were analyzed inductively following a
grounded approach (Charmaz 2014). Interviews first
underwent open coding. During the initial coding
phase, I simultaneously created detailed memos
reflecting on my impressions of the emerging codes
and patterns. These memos and initial codes guided
the next stage of focused coding, during which new
codes were created to capture salient themes within
and across interviews and initial codes were con-
densed (Charmaz 2014). For the purposes of this
analysis, I focused on data from medical providers
and themes that emerged from codes relevant to drug
testing, clinical decision-making, medical surveil-
lance, risk, and collaborations between medicine and
child welfare. Ethical approval was obtained through
the appropriate institutional review board.
Results
Clinicalization
Clinicalization is a process whereby providers use
clinical terminology, definitions, and frameworks to
describe forensic methods and tools. Unlike medi-
calization, clinicalization does not describe a pro-
cess of transformation (i.e., a behavior or condition
is not being transformed into a medical one). Rather,
the process of clinicalization superimposes clinical
techniques and language over essentially forensic
approaches. Clinicalization was evident in the ways
that providers discussed drug testing as routine and
couched testing in the language of patient care. One
obstetrician (OB) explained that “If a patient tells
me that she’s using marijuana, I usually don’t do a
urinary tox screen. But if they admit to anything
more than that, I’ll tell them that we just need to do
a tox screen just to . . . just to check. And then most of
them are like okay, that’s . . . that’s fine.” Framing
drug testing as “just checking” presents it as neutral
and routine when in fact, drug test results have the
potential to drastically affect patients’ lives, expos-
ing them to child welfare interventions, coerced
drug treatment, and long-term state surveillance. In
the following account, a physician (OB, teaching
hospital) shares his experience with drug testing and
attaining consent:
Doctor: We don’t necessarily go through and do
verbal consent for every test in the prenatal bat-
tery that you get when you first show up. We’re
gonna do a bunch of tests to check for all kinds
of things, including syphilis. We say something
like “in this situation one of the things that we
wanna check to make sure that we’re taking the
best care of you is a urine drug screen. Is that
okay with you?”
Table 1.  Medical Professionals Characteristics.
n
%
Employed by institution type
  Private hospital
12
40
  Teaching hospital
11
37
  Public hospital
6
20
  Community hospital
1
3
Provider type
  Obstetrician
12
40
  Hospital social worker
7
23
  Neonatologist
3
10
  Hospital administrator
3
10
  Maternal fetal medicine specialist
2
6
  Neonatal nurse
1
3
  Pediatrician
1
3
  Psychiatrist
1
3
Race
  White
20
67
  Black
7
23
  South Asian
1
3
  East Asian
1
3
  Arab
1
3
Gender
  Women
24
80
  Men
6
20
Total
30
100

McCabe
167
Interviewer: And normally, women are just like
“that’s okay?”
Doctor: Yes. They say yes. It’s a little bit like plead-
ing the fifth. If you say no, then we start to
wonder.
Drug testing was presented as just one test in a
battery of tests that patients may expect to be sub-
jected to while receiving prenatal care. Refusal of a
drug test carries different consequences relative to
refusing other sorts of tests (e.g., screening for sex-
ually transmitted infections). The language of
forensic investigation blends into routinized screen-
ing as a part of clinical assessment and providing
the “best care” to patients. Refusing drug testing is
compared to “pleading the fifth,” a legal designa-
tion to signal that a witness is exercising their con-
stitutional right not to incriminate themselves in a
criminal investigation. However, unlike criminal
legal proceedings, the right not to self-incriminate
is unavailable to patients in perinatal care settings
as they navigate care. Often patients are uninformed
that testing is taking place or what the potential
consequences of a positive test are (Warner et al.
2003). In cases where patients are made aware, to
refuse such testing would signal an admission of
wrongdoing. Drug testing presents a double bind
for patients where to refuse medical care becomes a
form of legal incrimination. Given the unique and
high-stakes risks posed to patients and low clinical
utility of drug testing, framing drug testing as neu-
tral in clinical communications obscures the social
and legal risks posed by drug testing and reveals
gaps in the informed consent process.
Another type of clinicalization arose when med-
ical professionals moved seamlessly between clini-
cal considerations and forensic interests when
discussing drug testing decisions. Placing distinct
and heterogeneous rationales on the same plane of
consideration, providers blurred the lines between
clinical screening and forensic testing, which
obfuscated the significant legal and social conse-
quences of testing for forensic purposes. An OB
(community hospital) explained how she decided
whether to drug test her pregnant patients:
We always ask. Any patient is screened
verbally. Patients will sometimes admit to
marijuana usage and sometimes they won’t. We
use the circumstances of the admission to drive
whether we are going to do urine screening for
drug use. If a patient comes in with a clinical
picture that suggests substance abuse, uh
placental abruption. . . . Then we’ll go ahead. A
lack of prenatal care in and of itself—during
the whole course of the pregnancy—kind of
raises our index of suspicion for substance
abuse. So, we use different pieces of our
medical history, and sometimes just our eyes
and ears to determine whether we’re going to
really focus on having the patient admit drug
use. And if they don’t, in the interest of the
baby, then we’ll just go ahead and do a urine
drug screen.
The account illustrates several ways that clinical
and forensic considerations meld into one another.
The obstetrician uses the language of forensic
investigation throughout; the emphasis on attaining
“admissions” from the patient, an “index of suspi-
cion,” and using “our eyes and ears” all point to an
ethos of surveillance guiding testing decisions.
“Index of suspicion” is terminology that is regu-
larly used in medicine to describe the extent to
which a disease or condition is being weighed as a
likely diagnosis. However, in this context, “index of
suspicion” takes on nonclinical connotations
because it is unclear if substance use is being sin-
gled out as a disease that the clinician would like to
treat or as a risk that must be detected and reported
“in the interest of the baby.”
In the aforementioned account, medical lingo and
the language of clinical discovery overlap with ter-
minology one might expect in forensic investigations
or court proceedings. For instance, an interest in
acquiring “admissions” from patients presents a kind
of medico–legal hybridity. In law, an “admission” is
a piece of evidence that can be entered in the adjudi-
cation of a legal case. In health care encounters, an
admission is a part of standard medical history-
taking and is often conducted under the auspices of a
private and confidential interview for diagnostic pur-
poses. The distinction has practical implications
because patients are not “put on notice” or otherwise
informed that the information that they share with
medical staff can be used as evidence against them
by state actors. Therefore, investigatory methods are
introduced into clinical practices without incorporat-
ing the underlying legal safeguards that would be a
part of a standard legal investigation.
It was common for providers to frame drug test-
ing decisions by listing several incongruous risk
factors side by side. In the following account, an
OB (teaching hospital) explains how decisions
around drug testing were made at his institution:

168
Journal of Health and Social Behavior 63(2)
Risk factors. She’s problematic. Short of testing
everybody, which we do not do, routinely. It’s
based on, you know, suspicion. . . . Class, poverty,
not attending prenatal care, or certainly any
direct evidence, right? Track marks. Appearing
inebriated. But we should be testing in those
circumstances. That’s direct evidence. I guess
the other indicator to test—now I’m thinking
about the other clinical indicators, somebody
comes in [with] severely high blood pressures,
or abrupting. Those are things that could be
caused by cocaine. And there’s medical reason
also to know because certain drugs we would
give to treat high blood pressure could be
extremely dangerous if there’s cocaine in your
system.
There were only a few medically indicated rea-
sons providers cited for conducting a drug test to
clarify the clinical picture. For example, abnor-
mally high blood pressure and placental abruption
could be related to cocaine use. Additionally, a phy-
sician may have concerns about how certain illicit
substances might interact with other medications.
However, these clinical concerns were placed next
to other sorts of information or social “risk factors,”
such as utilization of prenatal care, signs of poverty
or class status, verbal admissions of substance use,
or other “direct evidence,” all of which are not
directly linked to the medical management of the
patient (I discuss biases in care in more detail in the
following findings sections).
Clinicalization was also evident in medical pro-
fessionals’ use of the language of clinical “screen-
ing” in place of the straightforward language of
“drug testing.” Drug testing does not align with the
guidelines for clinical screening and is not a diag-
nostic tool (Wilson and Jungner 1968). In any form
(blood, urine, meconium, or umbilical cord sam-
ples), drug testing does not confirm that someone
has a substance use disorder. To do so requires eval-
uation by an appropriate clinician using diagnostic
criteria. By referring to drug testing as screening,
providers place forensic methods into a clinical tax-
onomy that, in effect, masks the investigatory intent
of testing from patients and spares providers from
directly naming and potentially wrestling with their
own policing and enforcement activities.
Although drug testing was posed in clinical
terms, it was rare for providers to discuss maternal
substance use with health-based frames. Instead, it
was often described as a behavior that may cause or
exacerbate other kinds of medical conditions, such
as placental abruption, elevated blood pressure, or
withdrawal symptoms in infants. Clinicians did not
mention medically treating the kinds of conditions
that co-occur with problem substance use, such as
overdose, infection of the heart valves related to
injection substance use, inadequate nutrition, car-
diovascular problems, risks associated with with-
drawal symptoms, risk of HIV, or hepatitis C
exposure and transmission. These findings support
the argument that substance use remains a moral-
ized problem despite numerous efforts to medical-
ize the condition (Conrad 2007).
When criminal suspicion enters the clinic, nor-
mative standards of care and informed consent go
out. Breaches in processes that protect patients,
such as informed consent and confidentiality, the
subversion of medical categories (e.g., using the
terminology of “screening” to describe a process of
forensic evidence collection), and scaling back
diagnostic norms (i.e., for determining a substance
use disorder), are a few ways that drug testing
revokes patient-hood and norms of care.
Negotiating Competing Risk
Frameworks
Medical staff negotiated medical and legal risk
frameworks while assigning varying degrees of risk
to illicit and licit substances. Some substances were
deemed benign even if they posed teratogenic or
other health risks, whereas others were associated
with criminality. There was a notable amount of
inconsistency in providers’ risk assessments as they
vacillated between health-based and criminal–legal
risk, revealing that presumptions of harm are unsta-
ble. Ranking substances allowed medical staff to
exercise their discretion by establishing gradients of
criminality and making finer distinctions between
patients. Hybridity in the form of competing risk
frames shapes decision-making in the clinic as pro-
viders grapple with their own, often contradictory,
assessments of risk.
Over the past decade, the United States has seen
a dramatic shift in legal, policy-based, and cultural
responses to certain illicit substances. Successful
efforts to legalize marijuana use and shifting atti-
tudes toward criminal justice responses to substance
use (Pew Research Center 2014) have paved the
way for medical and lay populations to reevaluate
their beliefs about harm posed by substance use ver-
sus its legality. Marijuana use has had a confounding
effect on providers’ assessments of risk and harm. In
the following account, an OB (public hospital)
explains why she believes perinatal marijuana use
should be exempt from child welfare interventions:

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169
What are the effects of marijuana? The reason
why I don’t call [child welfare] is because I feel
like marijuana—as far as I can tell—seems to be
fairly benign. I don’t want someone to be in a
system for something that’s fairly . . . which
tobacco is worse, and it’s legal. So, I don’t call
anybody on that person. I’m not trying to have
someone be at risk for losing their children over
something that’s not as noxious as tobacco use.
The doctor ranks substances by presumed
developmental or teratogenic effects, situating
marijuana use as “more benign” and less “noxious”
than smoking tobacco. In the same instance, she
contends with the legality of tobacco use, which
has been repeatedly shown to adversely affect
development (DiFranza, Aligne, and Weitzman
2004). Due to the unresolved and incongruous
relationship between legal and harmful, the pro-
vider establishes her own threshold for interven-
tion, drawing the line at involving child welfare for
marijuana use. The OB (teaching hospital) quoted
below makes a similar distinction between mari-
juana and cigarette use:
Some [doctors] have come to the realization that
[marijuana use] is so common that there’s not
much that we can do about it, other than
counseling women that this is not safe. What
I’ve heard in terms of counseling is it’s, at the
very least, as harmful as cigarettes, which
unfortunately doesn’t help much because
cigarettes are legal and incredibly harmful for
your health. So, it almost equates it to something
that’s not illegal.
Noting the ubiquity of marijuana use and its sta-
tus relative to harmful but legal substances (e.g.,
cigarettes), the physician resigns her powers of
intervention to educating and counseling patients
rather than reporting them to outside authorities. In
these cases, medical knowledge of the harmful tera-
togenic effects of legal substances, such as alcohol
and tobacco, is at odds with existing legal designa-
tions. Providers seemed conflicted when weighing
these distinctions. Counseling parents about the
potential effects of marijuana is a health-based
response that promotes patient care, a sign that mar-
ijuana usage is becoming medicalized in maternal
health settings. Yet it is also presented as a limited
and less desirable response. Patient counseling is
equated with being unable “to do much about” mar-
ijuana use. Providers may feel ill-equipped to coun-
sel patients about substance use or may view child
welfare involvement as a more effective, “strong-
arm” approach for getting patients to stop engaging
in substance use.
Downgrading the risk associated with marijuana
use was a recurring pattern across interviews.
However, shifting attitudes toward marijuana did
not encourage a critical reexamination of the pre-
sumed risks associated with other illicit substances,
specifically, cocaine and heroin, which were more
likely to be assessed using criminological criteria. A
perinatal social worker (private hospital) shared her
worries about suspected heroin-using patients visit-
ing their infants in neonatal care:
We’ve had times where—especially parents who
we are concerned are using heroin—that it . . . it’s
just . . . like the nurse feels really unsafe. But I
can kind of understand why she feels unsafe. [E]
specially when it’s overnight and there’s not as
many people around. I think it’s . . . most of the
time it’s coming from a good place. It’s
not . . . trying to be judgmental. It’s more I’m
scared for me as a person, but, also, I’m scared
because of this baby.
Substance-using patients disrupt the normative
operation of care in the neonatal setting. Heroin use
is singled out as introducing an element of threaten-
ing uncertainty and a looming sense of potential
criminality. Concerns about infant safety are men-
tioned alongside staff’s personal feelings of
unsafety, revealing that risk assessments become
amorphous the more risk is cast as anxieties around
criminality.
Unlike responses to marijuana, providers did
not discuss sharing health-related information or
providing counseling to mothers who used cocaine
or heroin. As the OB (teaching hospital) quoted
below explained, the degree of uncertainty about a
substance shapes attitudes toward child welfare
involvement at birth:
If you have a patient who is using recreational
marijuana, I don’t think that that’s an appropriate
use of resources or the [child neglect statute]. I
think if you have somebody who is an opiate-
dependent-on-maintenance-medication mother,
that—again—may not be an appropriate use of
law or resources, because that’s a known entity.
That’s a known issue. Then obviously for
those people who are using more heroin . . . or
cocaine . . . or those other substances, I think it is
an appropriate use. I as a medical professional, I
have no way of knowing how to evaluate if that

170
Journal of Health and Social Behavior 63(2)
infant is safe to leave the hospital with that
mother. And I don’t want to have to assess that. I
want no part of it. I have no idea how to go about
figuring that out. And I would want somebody
with a lot more skill and experience to be able to
come and talk to the mother to kind of figure that
out with her.
Attitudes and decisions toward involving child
welfare were not black and white but were made
meaningful in a context marked by medico–legal
hybridity. Medical staff drew from available medi-
cal and criminal–legal risk assessments to rank sub-
stances and establish thresholds for forensic action.
By positioning certain substances as representing
“known” or “unknown” risks, the previously
quoted physician gestures to the limits of medical
surveillance. Methadone treatment is categorized as
a “known” risk factor because it falls within the
realm of medical management. Substances such as
cocaine, heroin, and other opiates are “unknown”
risk factors that allude to a sprawling web of contin-
gencies embodied in the desires of patients and
their environments, social networks, and intimate
relationships. “Unknown” risk factors are described
as beyond the scope of medicine, unmanaged and
unadministered by any system of expertise.
Some substances, like marijuana, are more
likely to be ignored or treated in a therapeutic man-
ner (like tobacco and alcohol use). Substances,
such as cocaine and heroin, remain static and are
consistently associated with criminality and
unknown social risks that require management
from coercive and invasive systems. Moreover,
uncertainty regarding the developmental effects
associated with illicit substance use makes legal
categories more salient and overrides medical–sci-
entific rationality. The scientific consensus on the
long-term effects of illicit substance exposure in
utero is largely unsettled, particularly regarding the
relative risks posed by licit exposures, including
tobacco and alcohol exposure (Behnke et al. 2013;
Hurt et al. 2009; Irner 2012). Providers may adopt
legal risk frames to fill in gaps in scientific knowl-
edge. A physician who practiced at a teaching hos-
pital explained that legality supplants medical
rationales and possibilities for care when providers
drug tests patients:
Why aren’t you testing for SSRIs? Why aren’t
you testing for protein, for tobacco? Oh, we need
to look for evidence of intrauterine growth
restriction [IUGR]. They say: “well, cocaine
could cause this.” It could. Maybe it does. I don’t
know. The jury’s still out on that. But you know
what definitely does cause IUGR? Cigarette
smoking. Why aren’t we testing for that? . . . The
number one cause of preventable cognitive
impairment in this country is in-utero alcohol
exposure. Why aren’t you looking for this? And
they’re like: “oh, because that’s legal.” That’s
proof that what you’re doing has a primary
programmatic intent of law enforcement. When
you say, “because it’s legal,” you’re showing me
that their primary programmatic intent is law
enforcement or administrative law, or something
like that. But it’s not medical.
Although most of the medical staff I interviewed
were not as openly critical of drug testing as the
aforementioned provider, these findings show med-
ical professionals grappling with and expressing
uncertainty and in some cases, discomfort about
assessing risk using child welfare metrics. Providers
contort their own medical and scientific sensibili-
ties to make risk assessments about substance use
during pregnancy. Providers translate clinical con-
cerns and uncertainty about developmental health
into legal risk. Where medical science is unclear,
the statutory environment suggests a definitive
course of action based on concrete legal categories.
The process of swapping clinical for legal risk
assessments enables providers to channel patients
who embody clinical and social “unknowns” to sur-
veillant systems that will oversee and manage their
precarity.
Discretionary Suspicion
Race, class, gender, and other patient traits like
health status and age were salient in providers’
accounts of how patients were selected for testing or
shielded from suspicion. Counter to evidence that
racial bias in medical interactions is implicit or
unconscious (Feagin and Bennefield 2014), I found
that providers often mentioned race when discuss-
ing decisions to drug test. For example, a pediatri-
cian explained that drug testing was overwhelmingly
carried out on black patients relative to other racial
groups where he practiced. He explained: “The big
numbers [disparities] are coming from oversurveil-
lance of blacks. If you get 50 blacks and 50 whites
that are testing positive, maybe you had to test 2,000
blacks and 100 whites to get that 50/50.” Over
surveillance of black patients aligns with research
on drug testing and racial selection in perinatal care
settings (Chasnoff et al. 1990; Roberts et al. 2015).
Studies find that black women and their infants are

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171
more likely to be tested and reported to child protec-
tive services than white women and their infants
(Ellsworth, Stevens, and D’Angio 2010; Kunins
et al. 2007; Roberts et al. 2015). Race was also made
meaningful in the context of specific institutional
processes and operated in an intersectional manner.
The same physician (pediatrician, teaching hospital)
remarked:
This is more of a personal anecdotal kind of
thing—when there’s a white woman that looks to
be middle or upper class, and we’re like where did
you get prenatal care, and she’s pushin’ a [baby]
out, she’ll be like “I don’t know . . . some . . . some
group, I don’t know.” And we’re like “okay,
okay . . . we’ll get your records later.” And if it’s
the . . . if it’s a black teenager, and she’s like I don’t
know. Then it’s like “hmm . . . get the test.”
The candid admission reveals that the race,
class, and age of patients may determine if clinical
information (e.g., lack of prenatal care) is inter-
preted as a legal red flag. Prenatal care utilization
was mentioned across several interviews as a risk
factor and criteria for testing. Providers interpret
prenatal care utilization through their presumptions
about the social positionality of their patients,
determining whether their suspicion will be roused
or shrugged off. History of prenatal care expedi-
tiously signals information about patients’ resources
and riskiness and is imbued with social weight that
is not often questioned in the day-to-day provision
of care (Bridges 2011). For example, prenatal care
utilization is race and class stratified; black,
Hispanic, and Native American women experience
higher levels of unmet need (Osterman and Martin
2018). Prenatal care utilization can also indicate
numerous aspects of disadvantage, including lim-
ited transportation capability, lack of insurance, and
inability to take off time from work or caretaking
responsibilities (Roberts and Pies 2011). Using pre-
natal care as a trigger to drug test is complicated by
the fact that prenatal care use is determined by these
structural factors.
A neonatologist who worked at a private hospi-
tal in the city explained the circumstances under
which providers tested patients. She stated that
among their middle- and upper-class privately
insured patient population, race and class often
clouded their ability to determine who to test:
I mean the [patients] that strike out are [the ones
with] multiple substances. In a population like
this, you wouldn’t suspect it. Oh my god, this
mom was doing everything under the sun, but
[we] just never thought about it. And they tell the
teaching fellows: “you have to suspect it.” It was
a yoga instructor and they’re like: “yeah, but
she’s not doing drugs. No, she couldn’t be doing
drugs.” But she was an alcoholic, just doing
everything. And her baby’s urine tested positive
for everything.
That a “yoga instructor . . . couldn’t be doing
drugs” suggests that patients who present certain
lifestyle markers or affirm feminized ideals of self-
care and well-being are beyond criminal–legal sus-
picion. The same physician later reflected on her
own history of testing patients and explained that
suspicion rests on racial categories: “It’s based on
the clinician’s discretion. . . . You know, if I hear,
you know, African American teenage mom is kinda
loopy, I’ll say send it [the drug test]. It . . . it’s
terrible.”
“African American teenage mom” is an imag-
ined patient, and unlike a “yoga instructor,” the way
that she is imagined exposes her to institutional
harm. Racial stereotypes work alongside institu-
tionally situated biases to shape discretionary suspi-
cion. Political and cultural discourses about the
deservedness and full citizenship of single black
mothers that structure debates about resource allo-
cation and welfare reform often center reproduction
and child rearing. These discourses reverberate
within prenatal and perinatal care settings where
the politics of reproduction meet the material reali-
ties of pregnancy and birth care (Bridges 2011;
Manzer and Bell 2021). The practice of drug testing
allows providers to “do something” with their sus-
picion by mirroring forms of exclusion and disqual-
ification that exist in the broader social political
realm.
Black practitioners expressed frustration with
what they perceived as racially differential responses
to substance-using patients. Black medical staff
were critical of racial inequality, although they
were limited in their ability to change such prac-
tices. As one provider (OB, private hospital)
explained, she was the only African American in
the room trying to explain racially biased drug test-
ing to her colleagues:
How we identify these patients matters. I’m
African American, so I’m the only African
American person in the room and I brought it up.
I’m like, “well, you know, statistically speaking,
I’m the person who would have been judged [if I
were a patient], where this young lady who may

172
Journal of Health and Social Behavior 63(2)
be Caucasian or Asian, she’s in college and she
may have a problem also.”
Race, gender, class, and age operate intersec-
tionally and heuristically in clinical settings. These
heuristics activated providers’ discretionary suspi-
cion. However, I also found that providers resisted
detecting, labeling, or testing privileged patients.
An OB (public hospital) explained how providers
struggled to “believe” that the opioid crisis had
arrived at the local level, hinting at presumed
underlying social differences between prescription
opioid and heroin users:
We keep talking about this “opioid crisis,”
but . . . I just don’t think people really believed
it. . . . [I]n the city, people have this thought of:
“Oh, . . . it’s gonna be these people on heroin.”
But I mean it’s a lot of patients who are taking
prescription drugs. I think we’re kind of
underestimating that for those patients. It’s really
easy to say: “Oh, this patient’s on heroin, this is
a problem.” But I think we’re normalizing
people being on prescription medication.
The opioid crisis has been made visible or invis-
ible in racialized ways (Netherland and Hansen
2017). This was evident in the coded language that
medical staff used to refer to prescription opioid
users. For example, relative to heroin, prescription
opioids were described as less visible and less prob-
lematic. The “pharmaceuticalization” of the opioid
crisis situates the crisis as medical and race-neutral,
obscuring how institutional responses are racially
segregated in ways that protect white users from
punitive responses (Netherland and Hansen 2017).
Medical staff who worked at hospitals that served
privately insured, majority white patient popula-
tions described the opioid crisis as invisible, largely
because drug testing was not being carried out on
patients and opioid users were not being detected. A
neonatologist who worked at a private hospital
explained the staff were unsure if there had been an
increase in substance-exposed infants due to the
lack of regular testing: “We haven’t seen a change.
But I suspect that’s because we’re not looking. We
do not look. Pretty much routinely.” A perinatal
social worker (private hospital) who worked at the
same hospital noted:
We’re not really great about screening and some
of our OBs are under the assumption that their
patients wouldn’t be using prescription drugs or
any kinds of drugs. And unfortunately, I think
some get missed. . . . OBs feel like their patients
don’t do that and we all obviously know that’s
not the case. It’s affected all economic statuses.
The desire to shield privately insured and class-
privileged patients from suspicion resulted in pro-
viders avoiding testing certain patient populations,
which kept them out of the reach of punitive sur-
veillance systems. It is widely accepted that implicit
biases shape health care interactions (Feagin and
Bennefield 2014). These findings show that implicit
and explicit biases restructure the provision of care
when providers are empowered to investigate their
patients and highlight provider discretion as a key
process of legal assimilation.
Discussion
Drug testing in perinatal care is anything but neu-
tral, objective, and therapeutic. Drug testing mobi-
lizes action in a way that expands physician
discretion and legal enforcement capacity and trans-
forms clinical interactions and routines into a form
of criminalization. Through processes of clinical-
ization, negotiating competing risk frameworks,
and discretionary suspicion, medical actors assimi-
late legal frameworks and investigatory work into
their day-to-day routines and interactions. In this
analysis, I have examined these processes sepa-
rately, but they often work in concert. For instance,
providers’ ranking of illicit and licit substances also
reflects discretionary suspicion because illicit drugs
are imbued with social and cultural meanings
informed by racial, class, and gender politics.
Clinicalization normalizes and obfuscates how
extraclinical aims guide the provision of care while
discretionary suspicion limits the scope of provid-
ers’ enforcement activities. Both processes, because
they are masked and applied in a limited manner,
allow physicians to distance themselves from their
own policing activities. For researchers who are
interested in understanding how hybridity is
achieved, particularly in a field that is invested in
professional sovereignty, these results show that
hybridity thrives when the legal intent of certain
tasks is ambiguous. Institutional risk culture and
professional attitudes toward uncertainty also deter-
mine the degree to which criminal-legal logics
shape decision-making in care. Perhaps it is no sur-
prise drug testing technologies would become
infused with legal and extraclinical implications
within perinatal care, known for being a risk-averse
and risk-saturated area of care (Studdert et al. 2005).
Medical risk thinking in perinatal care settings often

McCabe
173
places maternal interests and fetal/infant interests on
opposite sides of the spectrum (Harris 2000). Thus,
medical risk frameworks may already complement
the child welfare model of assessing risk, streamlin-
ing the process of channeling patients from the hos-
pital to the child welfare system.
On its face, handing patients off to the state may
appear to reinforce the boundaries between medi-
cine and law. However, channeling counterintui-
tively reflects physician discretion and deference to
outside actors and systems. Medical discretionary
power is often thought of as delimited by standard-
ized practices, shared decision-making, and the law
(Timmermans and Angell 2001). Physicians are not
solely empowered through their clinical expertise,
but rather, their powers are enlarged through their
capitulation to legal and state definitions of harm
and risk. Moreover, channeling is a structural pro-
cess that bridges medicine and child welfare sys-
tems: The more the bridge is utilized, the more
solidified the partnership between the two institu-
tions becomes, and the less ability there is to forge
pathways to alternative systems (e.g., substance
treatment) or develop other internal processes to
respond to perinatal substance use.
This article documents biases in drug testing
decisions. Sometimes these biases were implicit
(i.e., referencing prenatal care as a proxy for other
types of risks or constructing opioid users as invisi-
ble). Surprisingly, biases were also often explicit.
Providers acknowledged that factors such as race,
class, and age influenced their willingness to inves-
tigate patients. Discretionary suspicion operates at
the intersection of race, class, gender, age, and
health status through moral constructs of mothering
and drug use. The construction of women’s sub-
stance use as more harmful and dangerous relative to
men’s is grounded in an essentialist view of “maternal
instinct” and “ideal motherhood” (Campbell 1999).
Sanctions aimed at pregnant substance users are
partly aimed at their “failure to absorb the cost of
social reproduction” (Campbell 1999:909). In addi-
tion, respectable mothering is interpreted through
gendered race and class norms (Campbell 2002;
Collins 1989; McKim 2014). In maternal care and
child welfare systems, suspicion is rooted in a dis-
trust of marginalized women to parent their chil-
dren (Luna and Luker 2013; Roberts 2002).
Enabling providers to police patients based on the
suspicion of maternal competence weaponizes
physicians’ preexisting biases and stratifies health
care along another dimension (i.e., increased risk
of becoming system-involved through provider
interactions).
There are stark consequences of medico–legal
hybridity in perinatal care. Using health care deliv-
ery systems to capture patients with substance use
issues creates unintended negative health outcomes,
resulting in more women seeking prenatal care late
into their pregnancies or avoiding it altogether,
birthing unassisted at home, or attempting to self-
detox without the supervision of health profession-
als (ACOG 2011; Stone 2015). Recent research
suggests that the postpartum period is a particularly
vulnerable time for women with opioid use disor-
ders when rates of fatal overdose significantly
increase (Schiff et al. 2018). By rerouting patients
toward punitive systems and away from health care
resources, providers retract medical care in a
moment when substance-using women need it most.
By straddling clinical and forensic forms of
social control, drug testing practices conform to
neither. Drug testing practices violate the norms of
clinical practice and standards of legal investiga-
tion. Whether it concerns the clinical utility of drug
testing and its viability as a diagnostic tool or
patients’ rights and the ethics of informed consent,
drug testing rarely rose to the level of meeting the
criteria for normative medical intervention. On the
other hand, drug testing was not a purely forensic
form of intervention because it did not conform to
several legal standards (i.e., laws that protect
individuals from incriminating themselves and
forensic standards that protect witnesses from
evidence tampering, forensic mishandling of
biological specimens, and testing errors). This
research demonstrates that when institutions come
together and create new hybrid formations, they do
not simultaneously usher in protective structures,
leaving individuals in the borderland exposed to
multiinstitutional violence.
Limitations and Generalizability
This study was conducted in Chicago, Illinois.
Although these data were collected before recre-
ational marijuana use was legalized in Illinois, it is
possible that attitudes toward marijuana use are
generally more permissive in Chicago relative to
other parts of the country. Future research should
examine regional variations in responses to sub-
stance use in perinatal care settings. In addition, this
analysis is premised on the uptake of legal tasks by
individual providers in settings where testing is
based on provider discretion. Studies examining
how law shapes provider–patient interactions in
systems where universal drug testing is carried out
may reveal different patterns and outcomes. Another

174
Journal of Health and Social Behavior 63(2)
limitation of this study is that the data reflect provid-
ers’ interpretations and perceptions of hospital test-
ing protocol. In the future, researchers should
examine official, documented hospital protocol to
understand how formal organizational policy shapes
provider practices. Finally, given sample size limi-
tations and the wide range of state and organiza-
tional responses to substance use during pregnancy,
these findings are not intended to capture practices
in perinatal care by and large. Rather, these findings
reflect dilemmas workers may contend with in set-
tings where they are given latitude over the degree
to which they adopt legal tasks or not.
Conclusion
Understanding how therapeutic and punitive control
blend together is essential for scholars studying
health governance in the twenty-first century. There
are several possible areas of collision between puni-
tive state and medical systems. Future global health
crises are expected to become more frequent and
destructive and will likely necessitate strong part-
nerships between public health, medicine, and the
state. Furthermore, the increasing politicization of
health care access and rights for marginalized
groups, including efforts to limit health care access
to immigrants and transgender people, and ongoing
efforts to restrict access to abortion services will
likely create myriad opportunities for health care
workers to enforce laws, actively challenge them, or
ignore them. Finally, researchers and practitioners
should examine the day-to-day criminalization of
health care, including practices such as forensic
testing, mandated reporting, sharing private medical
records for prosecutorial purposes, and court-
mandated or coerced treatment. How medical actors
mobilize law and exercise discretion reflects larger
population control methods and reveals new vulner-
able populations and social fault lines at the inter-
stices of medicine and punitive state systems.
Acknowledgments
I am grateful to Anna Kirkland and Sandy Levitsky for
their commitment to this research and for their generative
feedback along the way. Thanks to Claire Decoteau and
Paige Sweet for reading and providing feedback on previ-
ous versions of the article and to the three conscientious
reviewers for their insights.
Funding
The author disclosed receipt of the following financial
support for the research, authorship, and/or publication of
this article: This research was funded by the National
Science Foundation Award No. DDRI 1802773.
ORCID iD
Katharine McCabe
 https://orcid.org/0000-0002-2526-
5561
Note
1.
The Comprehensive Addiction and Recovery Act,
passed into law in 2016, requires that states report
the number of infants referred to child protective
services for prenatal substance exposure to the
Children’s Bureau. In 2019, available data indicated
that a total of 38,625 infants were reported to child
protective agencies for prenatal substance use by
health professionals. Of these reports, 83% were
investigated. These figures likely greatly underes-
timate the total number of infants reported; do not
include data for Florida, Iowa, New York, North
Dakota, or Pennsylvania; and underreport totals for
several states, including Tennessee and Illinois.
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Author Biography
Katharine McCabe is a postdoctoral researcher with the
John J. Reilly Center for Science, Technology, and Values
at the University of Notre Dame. She studies the intersec-
tion of medicine and law, inequalities in maternal health
care, and social and policy responses to perinatal sub-
stance use.

    Scientific Research Findings:

Answer:
• Providers framed criminal suspicion in medical terms. By blending clinical definitions and routines with forensic interests, the legal intent of drug testing was obscured from patients.
• Providers grappled with and expressed uncertainty about the risks associated with different types of chemical exposures. In the face of uncertainty regarding the effects of certain substances, providers swapped clinical for legal risk assessments.
• Providers made decisions about drug testing based on patient traits such as perceived race, class, and age. Providers also shielded some patient populations from forensic testing based on their perceived class status.