SPOUSAL PRIVILEGE

Spousal privilege protects confidential communications between spouses — words exchanged in confidence during the marriage — from being admitted at trial. If a wife tells her husband something in confidence, that specific communication is generally inadmissible: the husband cannot testify about the content of that private conversation.

That protection, however, does not extend to observable conduct. A spouse may testify about what they personally saw, heard (outside the confidential communication), or otherwise observed — the wife’s actions, gestures, physical conduct, coming and going, or statements made to third parties are not shielded by spousal privilege simply because the parties are married. In short:

• Protected: confidential verbal or written communications made between spouses during the marriage (the spouse cannot be compelled to disclose those communications).

• Not protected: noncommunicative acts and observations — what one spouse saw the other do, physical evidence, actions in public, statements to others, or any behavior not part of a confidential marital communication.

Keep in mind variations by jurisdiction: some states recognize both testimonial privilege and marital communications privilege; others limit when privilege applies (e.g., crime-fraud exception, domestic violence exceptions, or privileges ending on divorce). Always check the controlling law for the case’s jurisdiction.

Hospital Drug Testing in Childbirth: When Prescribed Medications Trigger Child Welfare Investigations – A Civil Rights Alarm

At our civil rights-focused law firm, we defend families against unwarranted government intrusion into the most intimate moments of life: pregnancy, childbirth, and parental rights. A groundbreaking investigation by The Marshall Project reveals a disturbing practice: U.S. hospitals routinely administer standard medications during labor—such as morphine or fentanyl for pain relief and epidurals, midazolam (a benzodiazepine) to reduce anxiety, or ephedrine and phenylephrine for low blood pressure during C-sections—only to report mothers to child welfare agencies when those same drugs appear in urine or meconium tests.

The result? Positive drug screens that trigger mandatory reports, CPS investigations, police involvement, temporary or prolonged child removals, home inspections, and months of trauma—all without evidence of illicit substance use. In one case, a Texas mother grieving a stillbirth at 32 weeks was given midazolam before an emergency C-section; the next day, she was reported after testing positive for the exact medication administered hours earlier. In Indiana, a first-time mother received morphine for contractions; her newborn’s meconium tested positive for opiates, leading to weeks of scrutiny despite negative prenatal tests and documented hospital administration. Other cases include five-month custody losses in New York over epidural fentanyl and an 11-day removal in Oklahoma due to a heartburn medication falsely flagging as methamphetamine.

These are not isolated errors. Hospitals often test after medications are given (e.g., via catheter urine or newborn meconium, which can reflect months-old exposure), fail to review medical records for prescribed drugs, skip confirmatory testing, and rely on error-prone immunoassay screens susceptible to false positives. Social workers—overworked and untrained in toxicology—frequently auto-report positives without medical context. Federal law requires reporting substance-exposed newborns, but no state mandates pre-report confirmation, and “good faith” reporting shields providers from liability. In the post-Roe era of heightened pregnancy surveillance, this system disproportionately harms women, especially those from marginalized communities, turning routine medical care into state suspicion and family separation.

This practice raises profound civil rights concerns: violations of privacy and bodily autonomy under the Fourth Amendment, denial of due process in family court interventions, and infringement on the fundamental right to family integrity. False positives fueled by hospital-administered drugs stigmatize mothers, erode trust in healthcare, and divert child welfare resources from actual abuse cases. Leading experts and some hospitals (e.g., Mass General Brigham, UCSF) now limit testing to medically necessary cases with consent and halt automatic reporting, emphasizing questionnaires over universal screens.

Families facing unjust CPS involvement stemming from these flawed protocols deserve aggressive advocacy. We have successfully challenged erroneous reports, defended against removals, and pushed for policy reforms to protect parental rights. If you or a loved one has been reported after hospital medications during childbirth, contact us—we fight to restore your family and hold systems accountable.

For further reading go to The Marshall Project and read Article:

Hospitals Gave Patients Meds During Childbirth, Then Reported Them For Positive Drug Tests” by Shoshana Walter, The Marshall Project (in partnership with Reveal, Mother Jones, and USA Today), December 2024.

https://www.themarshallproject.org

The full investigative report, based on dozens of interviews and medical records, details the scope and human cost.