Criminally Pregnant, Again: Tennessee’s Fetal Assault Law Won’t Die
Tennessee lawmakers are trying to revive a version of the Fetal Assault Law, originally passed in 2014 but allowed to sunset in 2016, after the state saw worsening outcomes for pregnant moms and babies.
I wrote two blog entries when this law was first passed – you can read “Criminally Pregnant in Tennessee” Parts 1 and 2 from April 12, 2014 and April 26, 2014. The second blog entry was supposed to be satirical. (I won’t try that again, after two out of six commenters thought I was being serious about putting the “addicted babies” in jail.)
This is the proposed law, in part: Notwithstanding subdivision (c)(1), nothing in this section shall preclude prosecution of a woman for assault under §39-13-101 based on the woman’s illegal use of a narcotic drug, as defined in Section 39-17-402, while pregnant, if the woman’s child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of the woman’s illegal use of a narcotic drug while pregnant,”
To summarize, the Fetal Assault Law says that a pregnant woman can be criminally charged if her baby is born addicted to or harmed by an illegal drug used by the woman.
The wording of the bill is scientifically wrong, of course. Babies can’t be born addicted, since addiction is diagnosed only in the presence of obsession and compulsion to use the drug despite adverse consequences. Babies don’t have obsessions or compulsions, and even if they did, we wouldn’t know it. But I know what lawmakers meant. The lawmakers likely meant to say, “physically dependent,” but lack knowledge about substance use disorder science to know the proper terms.
These types of laws are nothing new. We know the problems that occur with these laws, and Tennessee should learn from examples from the past – their own recent past.
Amnesty International released a 69-page report in 2017, titled “Criminalizing Pregnancy: Policing Pregnant Women Who Use Drugs in the U.S.” This report summarizes research about laws that criminalize behaviors during pregnancy and give some overall data, but the report focused on two states: Tennessee and Alabama.
It’s an interesting report, and worth a read. I wish Tennessee lawmakers would read it, because they would have more information about what happened during the two years the Fetal Assault Law was enacted in the years 2014 – 2016.
According to the Amnesty International report, here are the biggest problems seen under the law:
Deterrence of prenatal care: Predictably, pregnant women are less likely to seek prenatal care if they are using drugs and fear being arrested. Even the women who did seek prenatal care were sometimes drug tested without their consent and even without their knowledge.
Uneven application of the law: Some areas of Tennessee had far more cases charged than others, because of the decisions of the local prosecutors. A total of around one hundred women were charged under the Fetal Assault Law, mostly in the eastern part of the state, where there are few treatment facilities available for pregnant women, and in Memphis, in the far western part of the state.
Also, nearly all the women charged in Tennessee were either poor, minorities, or both. The county with the highest number of women charged under the Fetal Assault Law (Shelby County, where Memphis is located), was also ironically a county with lower rates of drug-exposed newborns than other parts of the state. However, that county’s residents are predominantly African-American. It looks as if the prosecutor in that county was more zealous about charging women under the Fetal Assault Law.
Adding to the problem, drug testing policy during pregnancy isn’t uniform. Poor and minority women are more likely to be drug tested, with one study showing that black women were 1.5 times more likely to be tested than non-black women, despite drug use rates that are approximately equal between races. Black women testing positive were ten times more likely to be reported to authorities than non-black women. (Kinins et al., 2007, Chasnoff et al., 1990)
Lack of availability of treatment: Ironically, more women were charged under the Fetal Assault Law in areas with fewer available treatment options. Even when pregnant women with substance use disorders desired treatment, there were few options. Only 19 of Tennessee’s 177 treatment centers open during 2014-2016 treated pregnant women. At the time this law was active, there were no opioid treatment programs in Eastern Tennessee. Even in parts of the state that had opioid treatment programs, the state-funded TennCare program doesn’t pay for methadone treatment during pregnancy, which is the standard of care as noted by experts in the Addiction Medicine field.
The Amnesty International report tells of one woman in Tennessee who tried for three months to access treatment but was turned down repeatedly. She was charged under the Fetal Assault Law.
According to calculations, even if all available treatment beds were set aside for pregnant women with substance use disorders, those resources wouldn’t cover even half of the existing need.
I hope Tennessee doesn’t go backward and re-enact this Fetal Assault law. Since substance use disorders are illnesses, it makes more sense for these women to get treatment, not jail time.
After all, that’s how we treat alcohol abuse and cigarette smoking during pregnancy. We have far more data about harm done to the fetus from maternal smoking and drinking alcohol. But because these substances are legal, they are dealt with as a public health issue. Obesity also affects the outcome of pregnancies. In one article, the dangers of maternal obesity were outlined, and the authors concluded, “Even modest increases in maternal BMI were associated with increased risk of fetal death, stillbirth, and neonatal, perinatal, and infant death.”
I doubt lawmakers would be comfortable setting laws around how much weight a pregnant woman can gain. But if their main concern is fetal well-being, and if they think criminalizing behavior is a way to fix problems, who knows? Maybe next year Tennessee will be patrolling obstetricians’ office for obese pregnant ladies.