HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, June 11, 2014

Guest Blogger Professor Seema Mohapatra: Tennessee’s Criminalization of Drug Use by Pregnant Women

Mohapatra_sStudies show that pregnant women who use drugs are unlikely to receive adequate prenatal care, and therefore are more likely to have poorer pregnancy outcomes than other pregnant women.  Although there may be confounding factors that explain these disparities, the lack of prenatal care definitely limits a woman’s face-to-face interaction with a physician.  Such interactions may allow physicians to offer health-promoting interventions to these women, including those that may help these women overcome addiction.  One of the reasons that addicted women avoid prenatal care during pregnancy is the (unfortunately well-founded) concern that they may face adverse consequences due to their drug use.  

Despite these concerns, Tennessee seems to be proceeding with an controversial new piece of legislation, SB 1391, which will be effective July 1, 2014, that allows for a pregnant mother to be convicted of assault “for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug, or for criminal homicide if her child dies as a result of her illegal use of a narcotic drug taken while pregnant.”  This law comes after Tennessee had seemingly eased back on the criminalization of expectant mothers in 2013 when it enacted the Safe Harbor Act, incentivizing treatment for prescription drug abusers, opening treatment opportunities for expectant mothers seeking help, and helping to ensure they would not lose custody of their child because of drug abuse.  However, this new legislation reinstates criminal penalties. 

This law will undoubtedly disproportionately affect minority and low-income women, encouraging expectant mothers struggling with addiction to seek an abortion rather than face incarceration.  According to the staff attorney with the ACLU Freedom Project, "the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse," and "[t]his deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time."  The American Medical Association joins this view and opposes legislation that criminalizes maternal drug addiction.  National Advocates for Pregnant Women (“NAPW”), a New York-based advocacy organization, says despite attempts by other states, Tennessee is the first to pass such a bill.  This Bill was signed by Governor Haslam notwithstanding numerous health and women’s organizations calling for a veto of the Bill.  

Additionally, women will likely not get help if their infants begin showing signs of drug dependence after they are born, because they may be afraid of being arrested.  Health care workers have noted that signs of newborn drug dependency can come long after the mother and newborn leave the hospital.  Overall, opponents state that it will drive vulnerable women away from drug addiction treatment, and thus it will have negative, lasting effects on the babies.  

The response by Governor Haslam after signing the bill was that he is aware of the concerns, and will monitor its impact.  He said in a statement, “in reviewing this bill, I have had extensive conversations with experts including substance abuse, mental health, health and law enforcement officials” and "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."  Additionally, the Haslam administration has said that women who seek drug addiction treatment while pregnant and complete the program will not be charged.  The new legislation has a sunset provision, meaning that the criminal liability under this law is only in effect for two years, and the law will be reassessed in 2016.  

This new legislation is the latest in a strong string of well meaning, but poorly thought out attempts to address the issue of drug use during pregnancy.  In 2010, I wrote a law review article for entitled, Unshackling Addiction: A Public Health Approach To Drug Use During Pregnancy, for a symposium at the University of Wisconsin.  In this relatively older Article, I critiqued the criminalization approach to substance abuse during pregnancy and the need for a public health based approach. In the Article, I argued for a public health approach and noted the need for evidence-based policy to deal with this problem.  I focused on a prevention based and harm reduction approach.  Unfortunately, the push towards criminalization continues and a public health approach still has been missing from the debate.  If we are serious about helping women overcome drug addiction, criminal penalties must be taken off the table.  Unfortunately, the Tennessee legislation is a step back, away from public health and reason.

- Professor Seema Mohapatra

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