POLITICS 04.15.14
Tennessee is Making Pregnancy
a Criminal Liability
The state legislature has
passed a bill that would allow police to investigate drug-taking mothers if
their unborn children are harmed by their addiction.
Tennessee may become the
first state with a law that could criminally prosecute pregnant women if they
harm their unborn children by taking illegal drugs. Miscarriages, stillbirths,
and infants born with birth defects would be grounds for police investigation
and charges that could put the mother behind bars for up to 15 years.
Last week, the proposed
legislation to allow for criminal assault charges to be brought against
drug-addicted pregnant women overwhelmingly passed the Tennessee Senate with
bipartisan support after already sailing through the House. The bill states
that “nothing shall preclude prosecution of a woman for an assaultive offense
for the illegal use of a narcotic drug while pregnant, if her child is born
addicted to or harmed by the narcotic drug.”
While South Carolina and
Alabama state supreme courts have ruled that late pregnancy substance abuse can
count as child abuse, Tennessee would be the first to state to have a law on
record criminalizing birth defects due to substance abuse during pregnancy.
Under the law, women who stick with drug addiction programs will not be
charged, but drug treatment programs aren’t accessible to all women, especially
ones in rural areas. This may ultimately leave the poorest and most isolated
women facing incarceration.
“This law brings treatment to
the worst of the worst,” say state representative Terri Weaver, who sponsored
the bill in the House. “It’s heartbreaking if you’re a police officer, and you
see a woman is seven or eight months pregnant and shooting heroin. There is an
individual inside that belly that has no choice but to take whatever goes into
it.”
“Tennessee has become one of
the top states for babies born addicted,” says Weaver, who introduced the bill
in the House. The legislation is just the latest in Tennessee’s series of
efforts to deal with a rise in infants born with Neonatal Abstinence Syndrome
(NAS), which is a group of problems akin to the effects of withdrawal.
However, the recent bill
stands in sharp contrast to what the state passed last year: the Safe Harbor
Act. That legislation guaranteed mothers would not lose parental rights if they
came forward and entered drug treatment rehabilitation programs.
Weaver and the bill’s other
supporters feel that the Safe Harbor Act did not go far enough in reducing
rates of babies born with NAS or punishing pregnant drug abusers. “Here’s the
double standard. If I hit a lady who’s pregnant and they’re both [mother and
fetus] killed, that’s two counts of homicide. But a woman who is pregnant can
stab herself in the stomach and hurt her baby and not be charged with
anything,” says Weaver. “It [the Safe Harbor Act] made a woman who was pregnant
above the law.”
However, the medical
community by and large disagrees with this approach for caring for the effects
of substance abuse in both mother and child. Among politicians there appears to
be much confusion over how to medically treat addictions, or even NAS. Weaver
claims that infants born with NAS “look like Gerber babies but their whole
mechanics are twisted, and they’ll never be the same.” But, that’s not
medically accurate says Dr. Kathy Hartke of the American College of
Obstetricians and Gynecologists (ACOG). Not only are the effects of NAS
temporary “there are excellent treatments for it.”
The Tennessee bill is a clear
extension of the pro-life personhood movement to grant embryos and fetuses the
same legal rights as American citizens.
Hartke takes issue with the
overall approach of Tennessee’s proposed legislation because of how it views
drug addiction. “Addiction is a chronic, relapsing biological and behavioral
disorder with genetic components. It’s not a moral failing. It’s not different
than hypertension,” she says. The ACOG’s official view is to oppose legal
actions that criminalize pregnant women’s behavior towards their fetuses. The
organization statesthat “Incarceration and the threat of incarceration have
proved to be ineffective in reducing the incidence of alcohol or drug abuse.”
When pregnant women become fearful that their doctors might find evidence to
have them arrested, they are simply less likely to seek out the medical care
they need during a pregnancy.
Another major problem with
Tennessee’s proposed law is that it ignores the fact that legally prescribed
narcotics can also result in NAS. Though the Tennessee Department of Health
declined to comment for this article, its commissioner, Dr. John Dreyzehner,
has previously said that although NAS is a problem in his state, abuse of
illegal narcotics really isn’t the root of it. “In Tennessee we know that 60
percent of the babies born to mothers, the babies that develop Neonatal
Abstinence Syndrome, their mothers had a prescription for the medication they were
taking,” he said.
But doctors and lawyers
interviewed for this article said it is not always easy to definitively
conclude what substance produced NAS in a child. Thus, there is potential for
women to be wrongly charged under this new law, even if they were taking
legally obtained drugs.
“It’s very difficult to prove
that a substance in a woman caused a specific outcome,” explains Farah
Diaz-Tello, a lawyer with the National Advocates for Pregnant Women. But while
it may be hard to prove, the reality is that with drug-addicted women “cause is
simply presumed.” This is especially the case for poorer, rural, and minority
women, who are also the ones many critics of Tennessee’s bill believe will be
charged in higher numbers. “Unfortunately, we’re operating in a society where a
person’s socioeconomic status is going to determine their justice,“ says
Diaz-Tello.
Legislation with the
potential to disproportionately negatively affect minorities and the poor would
usually be in the realm of Democratic opposition, but many Republicans have
actually opposed the bill out of pro-life concerns.
The Tennessee bill is a clear
extension of the pro-life personhood movement to grant embryos and fetuses the
same legal rights as American citizens, but its extremity has led many
pro-lifers to fear that the law would only drive more women to seek abortions.
As a result, the legislation “defies the dichotomy of pro-life and pro-choice,”
says Diaz-Tello.
In the house, of the 30
representatives who voted against the bill, eight were Republicans. In the
senate, the seven members who voted against the bill were all Republicans. Sen.
Mike Bell (R) expressed concern that women who didn’t live close to treatment
centers would effectively be forced into a prison situation. “‘Trust us, we’re
not going to prosecute,’ … I don’t know that’s good enough for me," he
said.
Diaz-Tello was not surprised
that a vocal minority of Republicans oppose the bill, even more strongly than
Democrats. Diaz-Tello recalls that Alabama pro-life group All Our Lives filed
an amicus curiae against the state’s judicial efforts to similarly criminally
prosecute fetal abnormalities and miscarriages because, “it didn’t align with
their pro-life values.”
In general, it is a
potentially slippery slope when legislators begin to criminalize the behavior
of pregnant women as abuse against their fetuses. Diaz-Tello believes
Tennessee’s bill is vaguely worded enough that it leaves the door open for
charging pregnant women for a wide variety of “unlawful” actions. “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 says. “She becomes a
criminal due to unlawful pregnancy loss.”
Tennessee Gov. Bill Haslam is
expected to receive the bill in the next few days, after which he has ten days
to veto it or it will become law. “No state has ever passed a law that makes it
a crime for a woman to continue her pregnancy,” says Diaz-Tello. Tennessee
could be the first.
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