There is good news today for pregnant women in Tennessee. These are words I have never written before.
The controversial “fetal assault” law passed in 2014 will expire this summer despite efforts by lawmakers to renew it. The law made Tennessee the first state in the nation to criminalize the use of drugs by pregnant women by authorizing their arrest and incarceration if a pregnant woman’s use of narcotics leads to an infant death or addicted baby.
Advocates for reproductive freedom and women’s health were quick to declare the law a major threat to public health–a belief supported by leading medical experts–because it would ultimately lead addicted pregnant women into the shadows, afraid to seek help for drug treatment or discuss their concerns with their doctors.
As Tamar Todd from the Drug Policy Alliance wrote back in 2014:
In most cases, women are not being prosecuted for using drugs while pregnant but for being poor and of color while pregnant. The reality is that many women use alcohol, tobacco, or other drugs while pregnant. But only a few are prosecuted and only for using certain drugs—not those drugs shown to pose greater possible risk to fetal health, such as alcohol, but those we have decided to criminalize largely because of the populations of people who use them.
The threat of prosecution, Todd says, does not prevent drug use. Drug addition should be treated as the medical condition that it is and not used to criminalize poor and minority women, as that would only deter them from seeking treatment and prenatal care. Findings by the American College of Obstetricians and Gynecologists were similar: punitive measures were not preventing mothers from using drugs or alcohol.
Additionally, the fetal assault law was criticized for establishing a frightening precedent, one where pregnant women would be operating under a different set of criminal laws than other Tennesseans.
“It creates a separate and unequal system of law for anyone who becomes pregnant,” said Lynn Paltrow, executive director of National Advocates for Pregnant Women.
South Carolina and Alabama are the only other states that take criminal action against expectant mothers.
The Tennessee law included a “sunset provision” causing it to expire in July 2016 unless it was extended. In recent weeks, members of the Tennessee GOP attempted to extend the law permanently and, on Tuesday, a committee of state legislators ultimately voted it down.
According to testimony received heard by the House Criminal Justice subcommittee, the fears of many about the effects of the fetal assault law proved to be founded.
Around 100 women have been arrested since the law came into effect. There was not a reduction in the number of infants born suffering from the effects of drugs or alcohol in any discernible way.
Mother Jones reported that on Tuesday, March 15, an obstetrician in Nashville told the subcommittee:
“I am seeing pregnant women presenting for treatment later in pregnancy—often in the third trimester. They tell me that they have tried to self-detox at home for weeks and months because they are afraid,” Young told legislators, adding that she’s “had patients tell me they are now planning on delivering out of state.”
Further, Allison Glass, the state director of Healthy and Free Tennessee, a nonprofit group for women’s health advocacy said, the reality of the policy is a true nightmare because the state simply does not have the drug treatment resources to help drug-addicted pregnant women. There is a waiting list over 1,000 names long for residential treatment programs and, of the 39 such programs in the state, pregnant women are only accepted by 11 of them. The state has 12 licensed methadone centers, but most do not accept Medicaid, meaning poor women are not able to access them.
Glass has called the vote Tuesday to end the criminalization of drug-addicted pregnant women a victory for Tennessee.
“This would have extended a dangerous and harmful law that has jailed pregnant women and new mothers who have used drugs, instead of working to ensure that they have access to effective treatment options,” Glass said. “We should never put our criminal justice system in the position of creating health policy.”