Tennessee's legislature gave its approval a bill that would criminalize some drug-addicted pregnant women, depending on the outcome of their pregnancy. The bill, if signed into law, would allow prosecutors to charge a woman with an "assaultive offense or homicide" if she takes illegal narcotics during her pregnancy, if "the child is born addicted, is harmed, or dies because of the drug." The bill would reverse the state's earlier abandonment of the provision in favor of a more compassionate approach to drug addiction and pregnancy. The House approved the bill 64-30 on Wednesday afternoon, a day after it passed the state Senate.
Many critics of the bill, and others like it, argue that the measure would open the door to a broader effort to criminalize women who engage in behaviors that potentially place a fetus at risk — like failing to follow the recommendations of a doctor. Bill sponsor and state Rep. Terri Weaver said in a floor debate on Thursday that her bill was intended to encourage women to "get help" for their addiction. "This piece of legislation is an intervention," she said, adding "Do you want help for yourself, and do you want help for the baby who is inside your womb, or not?"
Under the amended version of the bill passed today, the threat of charges goes away if a woman voluntarily enters in to an approved treatment program. Although that added provision helped to moderate some state-based opposition to the bill, Salon notes that most major medical associations, including the American Medical Association and the American Academy of Pediatrics, believe that the measure would discourage women with drug addictions from seeking prenatal care (and therefore risk discovery) in the first place.
Tennessee had a similar criminal penalty to Weaver's proposal in place until two years ago, when the state eliminated it in favor of more treatment-based solutions. Under the current rules, pregnant women in Tennessee are protected from prosecution until a fetus is "viable," or at about 24 weeks. As the Tennessean reported, the state's Safe Harbor Act went into effect last year, offering a litany of incentives to help women access treatment. Although the state has one year of data on the program, advocates say that's not enough time to demonstrate its effectiveness. As of late last year, the rate of drug-addicted births was increasing in the state.
Currently, 17 states, including Tennessee, consider drug use during pregnancy to be child abuse under civil child welfare statutes, according to the Guttmacher institute. Three states allow for "civil commitment" of pregnant women with drug habits — for instance, forced admission to an inpatient treatment program. No states currently have laws like the ones Tennessee proposed on the books, explicitly allowing a state to bring criminal charges against a pregnant woman because of a drug habit's potential or confirmed effect on a fetus. But some states have tried and succeeded in bring those charges, anyway, Guttmacher notes, relying on existing laws that don't pertain specifically to drug use in pregnant women.
Those attempts had a couple victories in the state courts: a South Carolina Supreme Court decision agreed that drug use during late pregnancy is criminal child abuse under state law. In 2012, the New York Times documented Alabama law enforcement's use of a child endangerment law intended to apply to meth labs to prosecute and jail drug-addicted pregnant women. In 2013, the Alabama Supreme Court agreed with this interpretation of the law.
Even in Tennessee, officials have tried to prosecute pregnant women for drug abuse despite their explicit protection under the law. A WBIR investigation documented a bunch of such cases since the earlier criminal provision was removed from the books. Earlier this summer, Memphis police attempted to prosecute a pregnant woman with a DUI even though her blood alcohol content was well under the legal limit, because she told law enforcement officials that she was four months pregnant.