Tennessee bill OKs criminal charges for mothers' prenatal drug use

A nurse at East Tennessee Children's Hospital in Knoxville, Tenn., gives medication to Baby Liam, who was born dependent on drugs, Mar. 29, 2013.
A nurse at East Tennessee Children's Hospital in Knoxville, Tenn., gives medication to Baby Liam, who was born dependent on drugs, Mar. 29, 2013.

A bill to allow criminal assault charges against women whose infants suffer harm from their mothers' prenatal drug abuse may soon be on the books in Tennessee.

The bill now awaits a signature from Republican Gov. Bill Haslam. The measure would allow prosecutors to press assault charges on women if an infant’s “addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.”

Legislation advanced through the state House and Senate this week, ending a long and contentious legislative battle in the last year over the efficacy of criminalizing drug use among pregnant women who already struggle with addiction.

State Rep. Terri Lynn Weaver, the bill's Republican sponsor, hailed the measure as a "velvet hammer" that allows prosecutors to urge pregnant women to choose between jail time and treatment, The Tennessean reported. 

Lawmakers brought the criminal penalty back from the dead after similar measures were defeated two years ago. The state shifted focus toward treating women and away from prosecuting them in light of growing concern that an increased number of infants are born dependent on drugs. Tennessee’s Safe Harbor Act, enacted last year, attempted to incentivize treatment for prescription drug abusers. The measure guaranteed that women wouldn’t lose custody of their newborns over drug abuse.

The Tennessee Department of Health reports a “ten-fold” rise over the last decade in babies born with Neonatal Abstinence Syndrome, typically associated with symptoms of withdrawal from opiates. Eager to curb the trend, lawmakers aren’t waiting to learn whether treatment is more effective than punitive action.

State legislators slid in an amendment to the bill that allows women to avoid criminal charges if they receive drug treatment voluntarily, appeasing early opponents in the state who argued against punishing women addicts. The bill also has a sunset provision baked into it, so the criminal penalty will be in effect until 2016, when lawmakers will revisit the impact of arresting women.

Opponents still worry that criminalizing prenatal drug use could deter women from seeking drug treatment or even prenatal care. Fear of getting caught or arrested could prevent women from seeking much-needed care. Others raise concerns that even if pregnant women turn to drug treatment facilities for help, the number of options would be severely limited for women living in rural areas.

No other state explicitly allows prosecutors to bring criminal charges against women who use drugs while pregnant., but a South Carolina Supreme Court found that late-pregnancy substance abuse counts as criminal child abuse. In Alabama, a state Supreme Court ruling found last year that a law meant to protect children from methamphetamine labs extended to drug-abusing pregnant women. Another 17 states consider prenatal drug use to be a civil offense under child-welfare statutes, the Guttmacher Institute found.