Tennessee Will Now Criminally Charge Pregnant Women Who Use Drugs

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Tennessee Gov. Bill Haslam (R) has approved a measure that will allow Tennessee to bring criminal charges against pregnant women who use drugs for potentially harming their fetuses, even though there isn’t conclusive scientific evidence that being exposed to illicit drugs in the womb causes long-term harm to children.

The governor’s approval of the legislation comes despite a massive outcry from reproductive rights and criminal justice groups across the country, who say that criminalizing pregnant women is the wrong policy approach. Threatening to bring charges against women who are struggling with substance abuse dissuades them from coming forward to seek the medical treatment they need. It’s also a policy that disproportionately harms low-income and non-white women.

“Today, the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse,” Alexa Kolbi-Molinas, a staff attorney with the ACLU Reproductive Freedom Project, said. “This deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time.”

In a statement accompanying his signature on the bill, Haslam claimed that he had “extensive conversations with experts including substance abuse, mental health, health and law enforcement officials” and will “be monitoring the impact of the law through regular updates with the court system and health professionals.”

But most experts — including the American Medical Association, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the American Public Health Association — oppose efforts to arrest pregnant women who use drugs. Medical professionals are concerned about women getting the prenatal care they need, since skipping out on those services actually leads to a greater risk of miscarriage, stillbirth, and infant death. Specialists in obstetric medicine and drug addiction called on Haslam to veto the measure.

Although drug possession and drug sales can result in criminal charges, states typically do not arrest people simply for using drugs. Addiction is considered to be a medical issue, and under the Constitution’s definition of cruel and unusual punishment, states aren’t allowed to criminalize those types of disorders. But Tennessee is making an exception for pregnant people.

“Do we arrest new fathers who come into the emergency room who test positive for drugs? This is not really about arresting pregnant women because they use drugs. This is arresting women because they became pregnant, making them vulnerable to charges of child endangerment for risking harm to a newborn,” Lynn Paltrow, the executive director of National Advocates for Pregnant Women (NAPW), one of the groups that’s been fighting against the criminalization of pregnant women for years, told ThinkProgress in an interview earlier this month.

Two years ago, Tennessee barred the use of criminal charges against pregnant women for using drugs, opting to encourage drug-addicted women to enter treatment. Advocates are frustrated that the state is backtracking on that policy, which they supported. “Now we’re seeing the General Assembly take two big steps back,” Farah Diaz-Tello, a staff lawyer for NAPW, recently told the New York Times. “It’s going from a state with some of the best practices to one of the worst.”