Tennessee is poised to become the first state in the country to subject women to criminal assault charges if they use drugs during their pregnancy. Last week, both chambers of the state legislature passed Senate Bill 1391, which would ultimately allow the state to scrutinize miscarriages, stillbirths, and birth defects to try to determine if drugs played a role.
The legislation is a direct response to recent reports that the number of babies being born addicted to drugs is on the rise. The Tennessee Department of Health tracks incidents of “Neonatal Abstinence Syndrome,” which is defined as withdrawal symptoms after a baby has been exposed to opiates in utero. “Over the past decade, we have seen a nearly ten-fold rise in the incidence of babies born with NAS in Tennessee. Infants with NAS stay in the hospital longer than other babies and they may have serious medical and social problems,” the agency’s website states.
That certainly sounds alarming — but medical experts warn it’s also misleading. Last month, a group of more than 40 researchers and experts released an open letter to set some of the facts straight. They point out that it’s not scientifically accurate to describe newborns as “addicted,” NAS doesn’t actually have long-term adverse effects, and misrepresenting these realities end up unhelpfully vilifying pregnant women who likely face significant barriers to medical care.
Nonetheless, the Tennessee House and Senate both passed the measure last week. “It would just seem to me that any society that puts value on life, that these defenseless children deserve some protection,” Rep. Terri Lynn Weaver (R), who sponsored the House’s version of the bill, said.
Weaver’s attitude echoes the national sentiment in the 1980s, when the media stoked unfounded fears about “crack babies” and law enforcement began pursuing pregnant women for using cocaine because they were an easy target in the War on Drugs. Even though there’s no conclusive scientific evidence that children who were exposed to drugs in utero suffer from long-term health consequences, it hasn’t really mattered. There have been hundreds of documented cases of states going after women for allegedly causing harm to their fetuses. Like many issues within our criminal justice system, these laws tend to disproportionately impact low-income people of color.
Although other states have used fetal harm laws to charge women with endangering their children based on suspicions that they used drugs while pregnant, no state has explicitly criminalized drug use during pregnancy. Farah Diaz-Tello, a lawyer with the National Advocates for Pregnant Women — which has been fighting against efforts to criminalize pregnant women for years — believes the proposed law could signal the beginning of a slippery slope.
“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 told the Daily Beast. “She becomes a criminal due to unlawful pregnancy loss.”
Diaz-Tello’s organization is partnering with a coalition of other Tennessee groups to urge Gov. Bill Haslam (R) to veto SB 1391, pointing out that it won’t do anything to improve access to medical care for impoverished families. Only 19 of the state’s 177 addiction treatment facilities currently provide care for pregnant women, an issue that SB 1391 doesn’t address whatsoever.
“This law was promoted by prosecutors against the recommendations of medical professionals and addiction specialists,” Cherisse A. Scott, the founder of SisterReach and the communications chair for Healthy & Free Tennessee, said in a statement released by the coalition. “It permits the arrest and incarceration of any woman who can’t guarantee the birth of a healthy newborn, and is completely out of step with the most effective standards of care for maternity care, addiction treatment, and neonatal care.”
The country’s major medical associations — including the American Medical Association, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the American Public Health Association — all oppose criminalizing pregnant women for using drugs. They point out that punitive laws end up dissuading women from seeking the medical treatment they need, since they’ll be too afraid of being prosecuted. And skipping out on prenatal care actually leads to a greater risk of miscarriage, stillbirth, and infant death.
Last May, Tennessee opted to take a very different approach to pregnant women using drugs. The Safe Harbor Act of 2013 focuses on getting women into drug treatment, and ensures that they won’t lose custody of their children if they seek help. Advocates point out that there hasn’t been enough time to observe the effects of the Safe Harbor Act, and lawmakers are rushing to pass additional legislation too soon.