A volunteer cuddler walks the hallway with a baby at East Tennessee Children's Hospital in Knoxville. The baby is one of many infants born dependent on drugs being treated at the facility, March 29, 2013.
Wade Payne/AP

Tenn. passes law criminalizing moms who used drugs while pregnant

Updated

Tennessee is resurrecting a law that aims to address drug abuse among pregnant women – by charging new moms with crimes.

Gov. Bill Haslam, a Republican, signed a bill into law Tuesday that would allow charges to be brought against a new mother if her infant’s “addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.” Haslam called the measure a useful tool to address a growing drug epidemic.

Tennessee is now the first state in the country to explicitly allow prosecutors to criminally charge new mothers after seeing a ten-fold increase in the number of children born dependent on drugs and suffering symptoms of neonatal abstinence syndrome (NAS), commonly associated with withdrawals. 

For years, the state locked up women who abused drugs while they were pregnant. But it didn’t work. Cases of NAS continued to skyrocket as Tennessee became a media poster-child for a drug epidemic. In 2013, health officials reported 855 cases of babies born addicted to drugs.

Sponsors behind the legislation have called it a “velvet hammer” for prosecutors to coax drug abusers into either finding help, or risking jail time. But in reality, critics worry that hammer will fall more like an anvil on an already marginalized population of women.

Tennessee already has a sky-high infant mortality rate – it ranks third in the nation. National medical organizations, along with local advocates and doctors, worry that figure will only get worse if women opt to turn away health care out of fear of getting busted for drugs. With treatment centers few and far between, they say the law will have a disproportionate effect on poor women and women of color.

“Tennessee families who are already being hit the hardest by policies such as the failure to expand Medicaid, poverty and a lack of available drug treatment facilities will be most deeply impacted by this bill,” said Cherisse A. Scott, founder and CEO of SisterReach, a Tennessee-based group focused on women’s reproductive rights. “Poor mothers and their families will be the ones who suffer the effects of this dangerous legislation the most.”

Alexa Kolbi-Molinas, a staff attorney with the American Civil Liberties union, told msnbc, “More and more these days we have politicians who say they think they can act like doctors.”

If similar measures catch fire in other states, it would be a “public health disaster,” she said. “The only hope we have is that Tennessee will remain the outlier.”

Tennessee lawmakers eased back on criminalizing moms in 2013, enacting the Safe Harbor Act to incentivize treatment for prescription drug abusers. The measure opened a window for mothers who sought help while also guaranteeing they wouldn’t lose custody of their newborns over drug abuse.

The legislation signed Tuesday reinstates criminal penalties, but it does allow mothers to escape prosecution if they complete drug treatment. The measure also has a sunset provision baked into it, meaning the criminal penalty will only be in effect until 2016, when lawmakers can assess its impact before moving forward.

Opponents still warn that mothers caught using drugs may be swept up by the legal system and separated from their children after they’re born, even if the moms opt for rehab.

The law “places a wedge between the mother and her child,” Scott told msnbc. “This is a really crucial thing, for a state to tout family values and be totally contradictory to that – are they wanting to get these women on their feet or not?”

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Tenn. passes law criminalizing moms who used drugs while pregnant

Updated