Should pregnant women addicted to drugs face criminal charges?

Under a new Tennessee law, they can face up to 15 years in prison, a fact that has lawmakers and doctors at odds

Tune to Al Jazeera America Tuesday at 10 p.m. ET / 7 PT for Sheila MacVicar's investigation.

Update March 31, 2015: As of last summer, a woman in Tennessee who uses drugs during pregnancy can be charged with aggravated assault against her own unborn baby, landing her in prison for up to 15 years. Since then, legislators in North Carolina and Oklahoma have introduced similar bills, hoping to reduce the number of babies born with drug dependency. Neither state would increase funding for addiction treatment aimed at pregnant women.

But in Tennessee, the number of drug-dependent babies continues to climb, with 973 such births in 2014, up from 921 in 2013. The latest numbers show that number could climb higher this year.

None of the Tennessee district attorneys America Tonight contacted would provide data on how many women have been charged under the new law.


NASHVILLE, Tenn. – The first strong opiate Shannon Casteel ever had was a Valium her mother gave her when she was just a preteen.

Born to a heroin addict and surrounded by drug use from a young age, her eventual addiction felt inevitable – and she’s now a living example of the cycle of addiction.

"The miracle would have been to not end up that way," she told America Tonight. "It was like I'd been holding my breath my whole life, and all of a sudden I could exhale."

Casteel spent her youth in and out of jail, drug courts and treatment programs, where she – now clean and sober – gave birth to a healthy first daughter. But within a year, Casteel relapsed – and got pregnant again.

Terrified that the drugs would harm her baby, she told her doctor about her addiction. Drug use during pregnancy is a tricky, but manageable, medical situation. But painkillers and heroin pose a bigger problem: Using opiates can harm the baby, but withdrawing completely is also dangerous, potentially leading to premature labor or even miscarriage.

So when Casteel’s doctor wrote her a prescription for more opiates, she took them.

Had that happened today, Casteel could face criminal charges in her home state of Tennessee, where a controversial new law has doctors and leaders at odds over how to address the state's high rate of addicts who give birth to babies suffering from painful withdrawal symptoms.

A tougher approach

As of July, a new law signed by Gov. Bill Haslam enables Volunteer State prosecutors to charge women with a crime as severe as aggravated assault, which carries a prison sentence up to 15 years, for using drugs during pregnancy if it harms a fetus or newborn. At lease three Tennessee women have already been charged since the law went into effect.

These ladies are the worst of the worst. These ladies are not thinking about prenatal care. Again, I want to emphasize what they're thinking about and that is just money for the next high.

State Rep. Terri Weaver

Addicts often give birth to newborns with painful drug-withdrawal symptoms called Neonatal Abstinence Syndrome.

Tennessee leads the country in the rate of babies born with NAS, and the numbers keep rising. Alarmed, lawmakers have struggled for years to find a solution. Last year, the state passed the Safe Harbor Act, a law that says that if addicted mothers seek treatment, the Department of Children’s Services cannot take their kids into custody solely due to her drug use.

But the law passed this year sends a conflicting message. It’s the first in the nation to specifically target and criminalize pregnant women for drug use – something most medical professionals say is really a health issue.

Treating pregnant addicts

Dr. Rahn Bailey knows how difficult addiction treatment can be. As chairman of Meharry Medical College’s psychiatry department in Nashville, he oversees one of the only programs in the state with a residential program specifically for pregnant women struggling with substance abuse.

The clinic provides group and individual therapy, parenting classes, a structured environment and life skills to cope in the real world.

"If the legislators make a law, this is a pretty big problem," Bailey told America Tonight. "But they’re not using a medical tool or strategy to solve what is absolutely a medical problem."

Bailey says – and a dozen major American medical associations agree – that a criminal approach to addiction treatment could end up being harmful for mothers and babies. The threat of jail time often causes women to go into hiding and avoid prenatal care, which is extremely dangerous.

Barry Staubus, the district attorney general in Sullivan County, Tenn., said 30 percent of the babies born in his area test positive for drugs.
America Tonight

Jessica Lyons manages the treatment program at Meharry, where she works with the women who are enrolled. She told America Tonight that pregnant women with addictions are already dropping out of treatment programs, avoiding their prenatal checkups and even considering abortion – all in fear of prosecution.

The law contains a provision that women can avoid jail time if they can enroll in and successfully complete a treatment program. But Lyons says that isn’t enough. Meharry’s clinic has just six beds for pregnant women.

"The law basically says that we’re going to give you the opportunity to get help," she told America Tonight. "The negative is, we don't have enough beds and services to accommodate all the ladies that need help."

Addicted with nowhere to go

Legislators who passed that law made it clear they have little regard for the difficulties these women face. When introducing legislation on the House floor, state Rep. Terri Weaver referred to pregnant addicts as "the worst of the worst." She and prosecutors who are enforcing the law hope the threat of jail time will scare women into treatment.

But pregnant women we spoke with say few treatment options exist.

When Casteel found out she was pregnant for the second time during a relapse, she called every treatment center she could find in the area, preparing for a tough pregnancy. She did not expect to get turned down by every single one.

"I couldn't even get through the phone call," she told America Tonight. "During the screening process, one of the questions is: 'Are you pregnant or could you possibly be pregnant?' And once you get to the conclusion that 'Yes, I'm pregnant,’ they'll give you referrals."

Jessica Lyons, who manages a Tennessee treatment program, said pregnant women with addictions are already dropping out of treatment, avoiding prenatal checkups and even considering abortion – all in fear of prosecution.
America Tonight

Most treatment facilities for pregnant women require women to be drug free before entering a program. There are only a few places in the entire state that are willing to detox a pregnant woman off opiates – an incredibly risky medical process.

America Tonight reached out to every treatment program listed on the Department of Health and Human Services website that claimed to treat pregnant women. Five clinics confirmed that they allow pregnant women to enroll in their residential treatment program and accept Medicaid. With two of the programs completely full, there are fewer than 50 beds in Tennessee available to pregnant drug users.

But the law does not address the lack of treatment options for pregnant women. And in a state that has already opted not to expand Medicaid under the federal Affordable Care Act, it seems unlikely that funding for addiction treatment will increase.

Conflicting views

The increase in babies with NAS is indicative of a larger problem of the state’s struggle with drug addiction. On the east side of Tennessee, near the North Carolina border, addiction is especially common in Sullivan County. According to Barry Staubus, the district attorney general, 30 percent of the babies born there test positive for drugs.

Staubus is a big supporter of the new law and testified in support of it before the state Senate. He rejects the notion that a lack of treatment creates an impossible situation for pregnant women with addictions. He admits that the treatment options in his district may not be ideal, but that’s no reason not to pass the law.

“We don't have enough resources, but there's a problem out there,” he said. “We'll try to find the resources and we'll try to be creative and try to meet the problem the best way we can.”

The law is necessary to protect babies, he said.

But the debate really comes down to a societal misunderstanding of addiction. Decades of research have led the medical community to define addiction as a “chronic brain disorder” and not a behavioral problem. Staubus disagrees.

“People say addiction is an illness, but it's a different kind of illness, let's put it that way,” he said. “It's not like cancer. If I have cancer, I can't go into a program and just get rid of it.”

Katherine Hayes said she was trying to get help for her addiction, but nobody would admit her because she was pregnant. “I was like, ‘How could you not want to help this child inside of me?’”
America Tonight

“What you’re forgetting is the consequences, and that ultimately, that woman has a choice the baby never had,” he added.

That, Casteel argues, is the biggest problem with addiction legislation.

“A big part of this disease is many people think that they can, as an addict, we can make a choice to not use again,” she said. “And if it were that simple, that's exactly what we would do. I would have chosen to stop using years ago.”

"You literally can't function without it," she added. "You know you can't, you have to have this substance to use the bathroom, to eat, to do anything. You know you can't live without it."

Casteel got clean after the birth of her second daughter almost three years ago. Since then, she had another baby and maintained her sobriety throughout. She’s now working with addiction specialists to start a treatment center called Mothers Mosaic, to help pregnant women battling addictions.

But even if a woman finds treatment help, staying clean and out of that cycle of addiction is a constant struggle.

"When you go to treatment, you're not told a whole lot about when you get home you're going to have to drag your kids to [treatment support] meetings with you," she said. "You get home and the child starts screaming their head off and you don't know any other way to cope, it's inevitable what's going to happen."

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