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The Dangers of Criminalizing Pregnancy Outcomes

New legislation in Tennessee has implications much wider than the use of illegal drugs by pregnant mothers-to-be.
(Photo: Syda Productions/Shutterstock)

(Photo: Syda Productions/Shutterstock)

When Senate Bill 1391 goes into effect this summer, Tennessee will become the first state in the nation to allow criminal assault charges to be filed against women whose fetus or newborn is harmed as a result of their taking illegal drugs during pregnancy.

Many states already punish mothers who use drugs; most use the child-welfare system to remove their children from custody. But the Tennessee bill is the first of its kind to detail criminal charges. State legislators and the media have generally framed the amendment as a motivation for mothers to get treatment through the drug court system. But what the bill doesn’t say gives it much wider-reaching implications.

Tennessee Governor Bill Haslam, who signed the bill into law two weeks ago, has said that “the intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs." Legislators and commentators in support of the bill have cited the rise in abuse of prescription painkillers as a reason to crack down.

Is criminal drug use among mothers the real motivation for this bill, though? According to The Tennessean, the state saw 921 cases of neonatal abstinence syndrome last year (in which a baby is born with some level of drug dependence, and suffers a withdrawal), but 41 percent of those cases involved legal drugs that were prescribed by doctors. Neonatal abstinence syndrome is also treatable, and temporary.

A worry among those who oppose the bill is that the very law that’s supposedly meant to steer mothers into treatment programs will actually do the opposite.

As Erik Eckholm reported for The New York Times before the bill was signed, “Any risks of narcotics to newborns have been exaggerated, according to medical authorities who say that withdrawal symptoms, if they occur, can be treated with no long-term effects.” A follow-up editorial by the Times board added, “this bill does not even try to address some of the most well-documented risks to pregnancy outcomes, starting with poverty, and including cigarettes, alcohol and legally prescribed drugs.”

This last point speaks to the fear of many who oppose the bill—that it will be used to disproportionately punish minority mothers and mothers who are poor. Not all babies are tested for the presence of drugs at birth, explains Farah Diaz-Tello, staff attorney for the National Advocates for Pregnant Women, a non-profit group that opposes the bill. Doctors use their judgment.

“When there are criteria are in place, those criteria generally track with race and poverty,” Diaz-Tello says. For instance, “late onset of prenatal care, low birthweight births, premature births—all of those things are experienced in a higher rate by African American women, regardless of whether or not they’re using drugs. So you end up with a situation where certain communities are over-tested.”

The National Advocates for Pregnant Women is working with the public defenders in Tennessee who will be defending the women charged under this law, to help them challenge the law on constitutional grounds. The group says the law is unconstitutional because, among other reasons, it is a form of gender discrimination. No one else in the state would be criminally charged for ingesting drugs (only for possessing or selling drugs), so, NAPW argues, this singles out pregnant women for separate and unequal punishment under the law.

Another factor to consider is why women are addicted to drugs in the first place. The Centers for Disease Control has called prescription painkiller addiction an “epidemic among women”—painkiller overdoses in women increased 400 percent from 1999 to 2010. Poverty might play a part here, too, Diaz-Tello says. Tennessee is one of the states that did not expand its Medicaid coverage, leaving many without good access to affordable health care.

“Think about how many people who are using narcotics illegally are self-medicating for something,” Diaz-Tello says. “Having chronic pain, or anxiety or depression or something like that doesn’t turn on or off depending on whether you have good access to health care. People do what they need to do to get the medication that they need. Some people are going to be targeted with criminalization for that, and some people are going to get away with it.”

A worry among those who oppose the bill is that the very law that’s supposedly meant to steer mothers into treatment programs will actually do the opposite. If mothers think they’re going to lose custody of their older kids, or lose the ability to work ever again if they have a drug conviction, they’ll be more likely to avoid prenatal care altogether. Social and behavioral science over the years has backed this up.

Another fear is that women may actually abort their babies, or lose their babies accidentally through hasty self-treatment. A mother stopping opiates cold turkey is actually just as much of a medical risk to the fetus as staying on them. Doctors recommend that pregnant women who are abusing opiates, for example, go into supervised methadone treatment, and maintain a consistent dose throughout their pregnancies.

The availability of drug treatment programs for pregnant women is yet another kink in this flawed bill’s plan. Cherise A. Scott, communications chair for Healthy & Free Tennessee, explained in a recent op-ed in The Tennessean:

Only two of Tennessee’s 177 addiction treatment facilities provide prenatal care on site and allow older children to stay with their mothers, and only 19 provide any addiction care for pregnant women. Senate bill 1391 does nothing to expand services so that low-income parents can complete the required treatment, even though it costs less than a third as much as jailing them.

If this bill fails to take medical consequences fully into consideration, perhaps that is because medical concerns are not actually the bill’s ultimate goal. The language of the amendment is vague enough that prosecutors could use it to punish women for any number of “unlawful acts” or “unlawful omissions” during pregnancy. The new bill includes a reference to the illegal use of drugs, but it doesn’t limit it to that. It also doesn’t limit the punishment to only misdemeanor charges. So, under this law, a pregnant woman could be charged for not wearing a seat belt, for reckless driving—or, for terminating her pregnancy by means other than through a licensed clinic, of which there are very few in Tennessee.

Diaz-Tello says that, while she has been pleased with the amount of media coverage this bill has gotten, she is frustrated by the misunderstandings and mischaracterizations she sees being repeated again and again.

“There is nothing in that law that limits it to drug-using women, nothing that limits it to misdemeanors,” she says. “The idea that this will only be used as a misdemeanor, and that it will only be used to get women into drug courts so that they can get treatment—those are the prosecutor’s talking points, that is not what the law actually says.”