Tennessee may become the first state to prosecute new mothers for illegal drug use during pregnancy if such use results in either addiction or harm of their newborn. At first blush, SB 1391 does little more than amend the state’s current fetal homicide law. Yet this very amendment—one that allows women who have pregnancy complications after using drugs to be charged with crimes ranging from a misdemeanor to aggravated assault—could see new moms slammed with up to 15 years in prison. The proposal, which easily passed through both chambers of Tennessee’s legislature, now awaits the signature or veto of Gov. Bill Haslam.
Other states have sought similar legislation have abandoned it due to the scientific evidence showing that such interventions actually put babies in harm’s way. The American College of Obstetricians and Gynecologists (ACOG) is unequivocal on this issue, stating that, “Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties.” Incarceration, or the threat of it, simply does not reduce drug or alcohol use. Instead, it can discourage pregnant women from seeking prenatal care. This, in turn, may deny these women the opportunity to receive evidence-based interventions via their healthcare provider.
Nevertheless, many states criminalize prenatal substance abuse to some degree; for example, by classifying it as a form of child abuse.
But before we examine all the ways this bill could go wrong, let’s put on our social justice hats and assume some good intentions. Why does this bill, and other statutes similar to it, even exist? Supporters of such legal interventions hope they will reduce the number of children born with neonatal abstinence syndrome (NAS), which is associated with numerous negative birth outcomes, including birth defects, low birth weight, and sudden infant death syndrome (SIDS). But the prevention by criminalization approach fails to take into account the complex nature of addiction, and the scarcity of addiction treatment options for pregnant drug users. A recent report from the Guttmacher Institute shows that few states have programs or protections in place for pregnant women seeking addiction treatment:
- 18 states have targeted programs
- 10 states give pregnant women priority access to state-funded programs
- 4 states protect pregnant women from discrimination in general programs.
SB 1391 offers clemency to pregnant addicts if they enroll in a recovery program before giving birth, remain in the program after delivery, and successfully complete it. Although Guttmacher lists Tennessee as one of the 10 states that give priority access to state-funded treatment programs, this alone does not guarantee that a woman seeking treatment can receive it, and thus even have a chance of being safe from prosecution.
Given the science showing both that penalizing women doesn’t work, and that addiction is a physiological, psychological, and genetic phenomenon, it would make more sense to focus on making drug treatment more available to pregnant women.
It is worth mentioning here, of course, that drug use does not occur within a bubble. The ecological factors associated with drug use virtually guarantees that the law would disproportionately affect minorities and the poor. RH Reality Check provides a fantastic in-depth analysis of how SB 1391 would affect black women the most:
“Certainly SB 1391 does not target Black women specifically, just as none of the laws that were enacted in states across the country in the wake of the ‘crack baby’ media hysteria did. However, history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.”
Because of its wording, SB 1391 could subject any women with a poor pregnancy outcome to an investigation. Given that such outcomes occur disproportionately among poor women and minorities, the law essentially becomes a form of legal discrimination. For example, only two of Tennessee’s addiction recovery centers offer on-site prenatal care. For women without reliable transportation, even acceptance into this program would not necessarily be their saving grace.
Gov. Haslam has a few more days to decide whether he’ll sign this bill into law. In the meantime, civil liberties, health, and women’s rights groups are actively campaigning against it. Be sure to check back next week for more details on the outcome.
Other Sexual Health News This Week
A federal judge in Oregon will hear arguments about the state’s voter-approved ban on same-sex marriage. (Huffington Post)
Brown University is being criticized for its handling of an on-campus rape case. (Brown Daily Herald)
The Y chromosome may be more important than originally thought. (New York Times)
One Virginia county may be losing its sex education teachers. (Washington Post)
Mississippi’s governor signed a law that bans abortion after 18 weeks gestation (20 weeks from a woman’s last period). (Washington Times)
A national infertility association graded each state on the availability of infertility care. (RH Reality Check)
A new study takes a more nuanced look at sex trafficking. (Slate)