According to a Guttmacher Report on Public Policy prepared by Cynthia Dailard and Elizabeth Nash on December 2000, Arizona, Illinois, Iowa, Massachusetts, Michigan, Minnesota and Utah are some of the states that require drug testing in newborns. Depending on the jurisdiction, a positive infant drug test can trigger requirements for the mother to seek treatment or result in a suspension or even withdrawal of parental rights.
According to Dailard and Nash, drug testing in newborns is one way of ensuring babies are born healthy. However, the requirement is not properly anchored in law, and has been successfully contested in the courts of most states. States that pursue the policy instead rely on laws that relate to child abuse and neglect. The varying responses to positive newborn drug tests reflect the differing, often conflicting opinions on how to handle the problem. While some states require mothers to seek treatment, some are more punitive and do not hesitate to take away parental rights. However, according to Figdor and Lisa Kaeser, authors of an October 1998 Guttmacher Report on Public Policy, there are concerns on whether the approach discourages pregnant women from using drugs or seeking treatment.
Pro-choice advocates have also raised another concern. In order to protect unborn children, states typically grant them legal rights. According to pro-choice advocates, this approach may eventually be used as justification for banning abortion.