TESTED | Part 2: The Test Nobody's Challenged

In 2021, South Carolina started running a new kind of drug test on newborns: cord blood. It reaches back further and flags more. And it's never been proven reliable in court. Here's what changed.

I told you I'm not going to stop talking about this: women getting arrested for testing positive for THC when they give birth. So let me answer a question I had to sit with myself.

Why was I suddenly seeing this in 2021?

These women weren't doing anything new. Mothers have been fighting through morning sickness since the beginning of time. Nothing about how they lived changed that year. So what did?

The test changed.

Around 2021, someone at the Department of Social Services started using a new kind of drug test. Not the usual one. This one didn't just test the mother and the baby. It tested the cord blood, the blood from the actual umbilical cord that connected the two of them. And the day they started using it is the day I started seeing more mothers get arrested.

Here's what you need to understand about that test.

Cord blood testing reaches further back in time than a standard test, and it's more sensitive. It picks up more, from longer ago. So a mom who used a CBD product weeks earlier, before she had any idea it could still show up, can light up on a test run the day she delivers. 

A more sensitive test that looks further back doesn't catch more criminals. It catches more people. That's the whole reason the numbers climbed. Not because mothers changed. Because the net got wider.

Now here's where I want you to pay attention, because this is the part that bothered me. The companies that sell these cord blood tests will tell you they're incredibly reliable. More sensitive. Reaches further back. Airtight. And of course they say that. They're the ones making money selling the test. That's not evidence. That's a sales pitch.

There's one place a test like this actually gets proven reliable, and that's a courtroom. The test gets challenged, both sides bring their experts, and a judge or a jury decides whether it holds up. That's how the system is supposed to vet the science it puts people in prison over.

I am not aware of a single one of these cord blood cases that has gone to trial. Not one.

So how does a test this serious never get challenged? Simple. These cases almost never make it that far. They get dismissed. Or the mother takes pretrial intervention. Or she takes probation. She takes the deal that makes the nightmare stop.

And I understand why. When you're staring down a felony and the state is talking about your children, a trial feels like betting your whole life on one hand of cards. Most mothers can't stomach that risk, and I don't blame them for a second.

But sit with what that means. The one place this test would finally get put under a microscope is the one place these cases never go. So the science never gets tested. The tool pulling mothers out of delivery rooms and into courtrooms has never once had to prove it works. It just gets trusted, over and over, because nobody's in a position to fight it.

That's not a small gap. That's the whole foundation, and it's never been checked.

And to be clear, this isn't one attorney in Georgetown seeing ghosts. The broader pattern, mothers across the country reported and charged over drug tests at birth, was documented in a national investigation by The Marshall Project, reported alongside CBS News, Mother Jones, and Reveal. 

Some of the women I've represented were part of that reporting. When something is happening at that scale and still almost never gets tested in a courtroom, that gap isn't a fluke. It's the design.

I'll pick this up in Part 3, because there's a question I get every time one of these charges gets dismissed. If it went away, what's the harm? Best believe there's harm, and it's bigger than most people think. I'll walk you through it.

For now, this is what I want you to hold onto. If you or someone you love is facing one of these cases, the test against you may not be as solid as it sounds. It's worth a conversation.

Every case is unique, and prior results do not guarantee future outcomes.

Common Questions

What is cord blood drug testing?

Cord blood drug testing analyzes blood from the umbilical cord after a baby is born. Compared to a standard urine test, it is more sensitive and can detect substance use further back in time. In South Carolina, this kind of testing has been used in cases where new mothers are reported for a positive result at birth.

Is cord blood drug testing reliable?

The companies that sell these tests describe them as highly reliable, but that reliability has not been meaningfully challenged in court. A test's accuracy is best vetted at trial, where both sides can examine the science. Because most of these cases are resolved before trial, cord blood testing in this context has rarely, if ever, faced that scrutiny.

What is pretrial intervention in South Carolina?

Pretrial intervention, or PTI, is a program that can let someone avoid a conviction by completing certain requirements, after which the charge may be dismissed. Many mothers in these cases accept PTI or probation rather than risk a trial, which is one reason the underlying drug test rarely gets challenged.

Every case is unique, and prior results do not guarantee future outcomes.