Tennessee’s Jekyll and Hyde Moment: Should Pregnant Women Who Use Drugs Be Treated as Criminals?

By Sara Satinsky

Should pregnant women who use drugs be charged as criminals or given help? From a public health perspective the choice is clear: provide treatment to help women quit drugs before their use harms their child.

Less than a year ago, Tennessee adopted a progressive policy to provide such treatment, but now is on the brink of taking a big step back. It could become the first state to criminalize pregnant women whose drug use harms a fetus or newborn baby.

The state legislature has passed a bill that, if signed by Gov. Bill Haslam, would authorize the filing of criminal assault charges against a mother if it is determined that she has harmed her fetus or newborn by using illegal drugs.According to The Guardian, the bill says charges can be brought against a woman 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."

Curbing the use of illegal drugs by pregnant women is a worthy public health goal, as are efforts to reduce the numbers of children born with symptoms of withdrawal from drugs. But a groundswell of medical, health, substance abuse, and women’s rights professionals and advocates are in emphatic agreement that the bill would do more harm than good. Here's why:

  • If a pregnant woman fears getting busted for drug use, she may avoid medical care. Research published in the journal Drug and Alcohol Dependence found that when faced with a punitive law, some women will "go underground," for fear of incarceration and losing custody of their child. By compelling a mother who is using drugs to avoid seeking care, the bill could cut pregnant women off from resources that would help them overcome their addictions -- even though the bill ostensibly aims to reduce addiction. 
  • The bill could mean prison terms for women for whom treatment is a healthier option, at the expense not only of the mother's future but that of her child. The bill carries a sentence of up to 15 years – a penalty that would also sentence children to growing up without their mothers. Long-term separation of parent and child can trigger a lifetime of mental and physical health problems for children. A 2012 Health Impact Assessment by Human Impact Partners found that sending non-violent offenders to treatment rather than prison would mean healthier lives, stronger families, and safer communities.
  • The bill does not give equal opportunity to all women. It allows a woman to avoid a sentence if she commits to completing a drug treatment program. But programs are not available in all parts of the state, and less so to women in communities of color and rural areas, potentially creating a funnel to prison for these women who may lack access to treatment programs. “It’s poor women, black and brown women, rural women who will be criminalized,” said Cherisse Scott, chief executive of SisterReach, one of the groups calling for the governor to veto the bill. 
  • The bill would mark a serious retreat from state policy designed to encourage pregnant women who are using drugs to seek treatment. Less than a year ago Tennessee enacted the landmark Safe Harbor Act, put forward by the Tennessee Medical Association, to address an alarming increase in the state of children born with symptoms of withdrawal from illegal and legal drugs – a tenfold increase over a decade, according to the state Department of Health. The Safe Harbor Act amended the previous law that allowed prosecution of women whose babies were born with withdrawal symptoms, and instead put pregnant women "to the front of the line" to receive drug treatment if they admitted use. Only 11 months have passed – not enough time to see if the Safe Harbor Act is working.

Proponents of the bill say their motivation is to support mothers in getting help for drug use and protecting children. This bill will do the opposite. And that’s why experts are calling on Gov. Haslam to weigh the evidence and veto the bill.

Sara Satinsky, MPH, is a senior researcher at Human Impact Partners, an Oakland, Calif., nonprofit that studies the health and equity impacts of public policy.


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As a women myself,I understand that women that are pregnant seem more sensitive and vulnerable but any women that is crazy enough to take drugs while pregnant should be considered as a criminal.

By Taryn Kotze 04542054 (not verified) on 24 Apr 2014 #permalink

This bill is a permanent solution to a temporary solution to jail a pregnant women for up to 15 years will not only affect the mother but the well being of the child. This is a bill that will inevitably lead as mentioned above to mothers feeling isolated and will withdraw resulting in them not receiving prenatal care which this will result in the baby having health problems and eventually may lead to neonatal death.The long term effects on the child will be paramount these effects may include anger rejection and confusion which will topple into their adult lives and may impact their family lives when they decide to have a family.This bill in all honesty is not viable or practical

By Gomolemo Mangope (not verified) on 25 Apr 2014 #permalink

Taryn, another term for "crazy enough to take drugs while pregnant" would be "addicted." It's very hard to overcome addiction, which is why I'd like to see laws that encourage women to get help, rather than discouraging it as Tennessee's law would do.

If the state’s objective is to protect the child, prosecuting the mother will have adverse effects. Punishment for addiction will only force the matter underground where it may fester and more children will be faced with the issues previously stated by Gomolemo. To ensure the child’s wellbeing, the mother will need adequate support and resources in order to overcome her addiction so that she may care for her child properly. However, if the mother is unable to make the necessary changes to her lifestyle, and the child’s environment proves unhealthy, it would be in the child’s best interest to be removed and placed in a more stable surrounding. Although this bill has only been active for 11 months and Tennessee has not yet seen results, I strongly agree that it will dissuade mothers from seeking help, thus compromising the lives of many unborn children.

By Ashleigh Smith… (not verified) on 01 May 2014 #permalink

Great article! Totally agree with your analysis of why criminalizing addiction is ethically wrong and counterproductive. Similar to punishing/incarcerating individuals with mental illness. Treatment not prison. thanks!

By maxine scherz (not verified) on 01 May 2014 #permalink

If I understand the bill correctly, mothers will not be charged until after the child is born and only if there is proof of damage due to drug use. How pointless is that!

By Jane Harris (not verified) on 02 May 2014 #permalink

I agree with Ms Satinsky that "curbing the use of illegal drugs by pregnant women is a worthy public health goal" and I can see no value in taking this regressive step which seems designed only to inflict a punitive cost on two very vulnerable victims of drug addiction; the mother and child. This is the perfect opportunity to maximize rehabilitation and improve future maternal behavior.

By Robert Rodner, M.D. (not verified) on 09 May 2014 #permalink