Postnatal Drug Tests Turn Mothers Into Felons

Five years after giving birth to a baby girl in 2019, Mississippi mother Brandy Moore was arrested for “aggravated domestic violence” based on a postnatal drug test. The timing was puzzling, and so was the legal reasoning of the prosecutor who accused Moore of that felony, which is punishable by up to 20 years in prison.

Postnatal drug tests, even when they are erroneous, can trigger grueling investigations by state-appointed social workers, which can lead to separation of mothers from their newborn children and criminal charges. But Moore’s case was unusual because, for reasons that were unclear, she was not arrested for her alleged prenatal crime until her daughter,
Remi, was in preschool. It was also unusual because the prosecutor dropped the charge after reconsidering his strategy of trying to “help” mothers by threatening them with prison.

Moore used methamphetamine early in her pregnancy but stopped after a religious epiphany inspired her to keep the baby and turn her life around. She attracted scrutiny at the hospital where she gave birth because her urine tested positive for marijuana and opioids. She said she smoked marijuana near the end of her pregnancy to relieve nausea. She also took prescribed opioids for pain relief the night before Remi was born. But the urinalysis results led to a drug test of Remi’s first bowel movement, which detected traces of amphetamines, consistent with Moore’s account that
she stopped using meth midway through her pregnancy.

Based on the latter test result, District Attorney Steven Kilgore obtained the indictment that led to Moore’s arrest last May. But her conduct plainly did not fit the elements of aggravated domestic violence, a charge that is justified only when someone “attempts to cause serious bodily injury to another, or causes such an injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.”

As Kilgore saw it, that did not matter, since the women he charged typically pleaded guilty. “Ultimately the goal wasn’t to get a conviction upheld after a trial, which would be the goal in a murder case or something like that,” he told Mississippi Today reporter Anna Wolfe. “It was to get help for this mother.”

Kilgore was shocked when Wolfe revealed the harm caused by his use of this charge, including prison sentences as long as 20 years for women who failed to meet the arduous demands of his district’s drug court program. “I’ve reevaluated our stance on the topic and have decided not to handle these cases anymore,” he told Wolfe. “It was eye-opening to learn of the fate of these women. I believe we all can do better.”

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