Tennessee criminalizes drug-related pregnancy complications

Tennessee Gov. Bill Haslam on Tuesday signed into law a bill that punishes women for having drug-related pregnancy complications, ignoring calls for a veto and doctors’ objections. The bipartisan bill, SB 1391, passed both chambers of the state legislature earlier this month, paving a way for prosecution of new mothers on aggravated assault charges if it can be proved that their babies were born “addicted to” or “harmed by” narcotic drug use during pregnancy. Under this law, any woman in the state with an abnormal birth outcome feasibly attributed to drug use could face a criminal investigation and up to 15 years in prison.

The bill’s sponsors, Sen. Reginald Tate, a Democrat, and Rep. Terri Lynn Weaver, a Republican, hope that the threat of jail will force addicted mothers into drug treatment programs. Last year Tennessee began requiring hospitals to report on infants born with neonatal abstinence syndrome (NAS), a medical condition in newborns resulting from exposure to addictive drugs while in the mother’s womb. The state’s Health Department reported 921 babies born with NAS in 2013 and 278 such cases in the last four months. Lawmakers believe SB 1391 sill reduce the occurrence of NAS births and drug-related infant mortality.

SB 1391 is the latest chapter in a long history of social and political crusaders targeting pregnant women’s bodies and behavior. In the early 20th century, advocates for routine prenatal care argued for the importance of such medical care on the grounds that, in the words of influential obstetrician John William Ballantyne, it could “improve the race and lessen the number of defectives and derelicts.”

While the immediate goal of prenatal medical care was to reduce mortality rates in childbirth, the public rhetoric advocating for such care often emphasized eugenic goals of race betterment and weeding out abnormality. This legacy of using prenatal care to eradicate defects is still evident in its emphasis on testing for conditions such as Down syndrome. In the 1980s, the decade of fetal rights, women began to be prosecuted for reasons deemed abuse of unborn children, ranging from drug addiction to failure to follow a doctor’s orders.

Tennessee’s law is a continuation of the flawed logic that social problems can be solved by using prenatal care as a means of controlling the bodies and behavior of pregnant women. In addition, the law puts medical personnel in the position of law enforcement, responsible for reporting possible cases of abnormalities after birth (and potentially in utero) that suggest unwanted behavior by the mother.

Opposition to the law has come from across the political spectrum, including reproductive and women’s rights groups and some anti-abortion activists. Opponents say it would disproportionately affect minority and low-income women, encouraging addicted mothers to seek abortions rather than face incarceration. Those in low-income neighborhoods and rural areas already face limited access to drug treatment programs. Moreover, it is unclear whether women whose addiction is treated with substances such as methadone will be subject to prosecution.

The law is grounded in misperceptions about NAS and its long-term effects. Weaver says babies born with it “look like Gerber babies, but their whole mechanics are twisted, and they’ll never be the same.” Medical researchers disagree, arguing that the effects of NAS are rather short-lived and easily treatable.

Far from reducing rates of drug addiction during pregnancy, the law will almost certainly discourage pregnant women suffering from drug addiction to seek any medical care, let alone drug treatment, for fear of prosecution. Women who undergo the trauma of a miscarriage or other pregnancy complications may have to endure the additional pain of being treated as criminal suspects.

If convicted and sentenced to serve time, mothers could be separated from their families, including their newborns, almost certainly putting those families in even worse straits than they were before. Legal experts have called the law a slippery slope, citing vague language that could lead to prosecuting pregnant women and new mothers for even more problematic things such as lack of prenatal care, inadequate nutrition and traffic accidents.

SB 1391 attempts to address poverty and addiction by punishing pregnant women and pitting the rights of the mother against the rights of her unborn child. It is politically expedient to regulate the behavior of pregnant women rather than addressing the roots of social problems such as drug addiction. This only facilitates the prenatal care system’s tendency to see the mother as another threat vector in a fetus’ otherwise normal development rather than as a patient with her own needs.

There is no doubt that drug addiction during pregnancy is a problem. But if we really want to help addicted pregnant women, then we need to provide them with access to better health and prenatal care. Lawmakers can begin by supporting women-centered models of prenatal care (such as what prominent midwife Ina May Gaskin has called the “midwifery model of care”) that treat the mother and fetus as an inseparable unit.

We need social programs that directly address poverty and provide those with limited means with better access to health care, drug treatment programs and child care services. Tennessee’s wrongheaded law takes no meaningful steps toward addressing the roots of this problem but makes enormous strides in further eroding the rights of women.