Tennessee may become the first state with a law that could criminally prosecute pregnant women if they harm their unborn children by taking illegal drugs. Miscarriages, stillbirths, and infants born with birth defects would be grounds for police investigation and charges that could put the mother behind bars for up to 15 years.
Last week, the proposed legislation to allow for criminal assault charges to be brought against drug-addicted pregnant women overwhelmingly passed the Tennessee Senate with bipartisan support after already sailing through the House. The bill states that “nothing shall preclude prosecution of a woman for an assaultive offense for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.”
While South Carolina and Alabama state supreme courts have ruled that late pregnancy substance abuse can count as child abuse, Tennessee would be the first to state to have a law on record criminalizing birth defects due to substance abuse during pregnancy. Under the law, women who stick with drug addiction programs will not be charged, but drug treatment programs aren’t accessible to all women, especially ones in rural areas. This may ultimately leave the poorest and most isolated women facing incarceration.
“This law brings treatment to the worst of the worst,” say state representative Terri Weaver, who sponsored the bill in the House. “It’s heartbreaking if you’re a police officer, and you see a woman is seven or eight months pregnant and shooting heroin. There is an individual inside that belly that has no choice but to take whatever goes into it.”
“Tennessee has become one of the top states for babies born addicted,” says Weaver, who introduced the bill in the House. The legislation is just the latest in Tennessee’s series of efforts to deal with a rise in infants born with Neonatal Abstinence Syndrome (NAS), which is a group of problems akin to the effects of withdrawal.
However, the recent bill stands in sharp contrast to what the state passed last year: the Safe Harbor Act. That legislation guaranteed mothers would not lose parental rights if they came forward and entered drug treatment rehabilitation programs.
Weaver and the bill’s other supporters feel that the Safe Harbor Act did not go far enough in reducing rates of babies born with NAS or punishing pregnant drug abusers. “Here’s the double standard. If I hit a lady who’s pregnant and they’re both [mother and fetus] killed, that’s two counts of homicide. But a woman who is pregnant can stab herself in the stomach and hurt her baby and not be charged with anything,” says Weaver. “It [the Safe Harbor Act] made a woman who was pregnant above the law.”
However, the medical community by and large disagrees with this approach for caring for the effects of substance abuse in both mother and child. Among politicians there appears to be much confusion over how to medically treat addictions, or even NAS. Weaver claims that infants born with NAS “look like Gerber babies but their whole mechanics are twisted, and they’ll never be the same.” But, that’s not medically accurate says Dr. Kathy Hartke of the American College of Obstetricians and Gynecologists (ACOG). Not only are the effects of NAS temporary “there are excellent treatments for it.”
Hartke takes issue with the overall approach of Tennessee’s proposed legislation because of how it views drug addiction. “Addiction is a chronic, relapsing biological and behavioral disorder with genetic components. It’s not a moral failing. It’s not different than hypertension,” she says. The ACOG’s official view is to oppose legal actions that criminalize pregnant women’s behavior towards their fetuses. The organization states that “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” When pregnant women become fearful that their doctors might find evidence to have them arrested, they are simply less likely to seek out the medical care they need during a pregnancy.
Another major problem with Tennessee’s proposed law is that it ignores the fact that legally prescribed narcotics can also result in NAS. Though the Tennessee Department of Health declined to comment for this article, its commissioner, Dr. John Dreyzehner, has previously said that although NAS is a problem in his state, abuse of illegal narcotics really isn’t the root of it. “In Tennessee we know that 60 percent of the babies born to mothers, the babies that develop Neonatal Abstinence Syndrome, their mothers had a prescription for the medication they were taking,” he said.
But doctors and lawyers interviewed for this article said it is not always easy to definitively conclude what substance produced NAS in a child. Thus, there is potential for women to be wrongly charged under this new law, even if they were taking legally obtained drugs.
“It’s very difficult to prove that a substance in a woman caused a specific outcome,” explains Farah Diaz-Tello, a lawyer with the National Advocates for Pregnant Women. But while it may be hard to prove, the reality is that with drug-addicted women “cause is simply presumed.” This is especially the case for poorer, rural, and minority women, who are also the ones many critics of Tennessee’s bill believe will be charged in higher numbers. “Unfortunately, we’re operating in a society where a person’s socioeconomic status is going to determine their justice,“ says Diaz-Tello.
Legislation with the potential to disproportionately negatively affect minorities and the poor would usually be in the realm of Democratic opposition, but many Republicans have actually opposed the bill out of pro-life concerns.
The Tennessee bill is a clear extension of the pro-life personhood movement to grant embryos and fetuses the same legal rights as American citizens, but its extremity has led many pro-lifers to fear that the law would only drive more women to seek abortions. As a result, the legislation “defies the dichotomy of pro-life and pro-choice,” says Diaz-Tello.
In the house, of the 30 representatives who voted against the bill, eight were Republicans. In the senate, the seven members who voted against the bill were all Republicans. Sen. Mike Bell (R) expressed concern that women who didn’t live close to treatment centers would effectively be forced into a prison situation. “‘Trust us, we’re not going to prosecute,’ … I don’t know that’s good enough for me," he said.
Diaz-Tello was not surprised that a vocal minority of Republicans oppose the bill, even more strongly than Democrats. Diaz-Tello recalls that Alabama pro-life group All Our Lives filed an amicus curiae against the state’s judicial efforts to similarly criminally prosecute fetal abnormalities and miscarriages because, “it didn’t align with their pro-life values.”
In general, it is a potentially slippery slope when legislators begin to criminalize the behavior of pregnant women as abuse against their fetuses. Diaz-Tello believes Tennessee’s bill is vaguely worded enough that it leaves the door open for charging pregnant women for a wide variety of “unlawful” actions. “The law is so broad that it could lead to charges against a woman who drives recklessly, gets in an accident, and then loses pregnancy. It could also be used against women who try to self-induce abortions,” Diaz-Tello says. “She becomes a criminal due to unlawful pregnancy loss.”
Tennessee Gov. Bill Haslam is expected to receive the bill in the next few days, after which he has ten days to veto it or it will become law. “No state has ever passed a law that makes it a crime for a woman to continue her pregnancy,” says Diaz-Tello. Tennessee could be the first.