The Tennessee state legislature passed SB 1391 Wednesday, a bill that allows women who suffer from drug-related pregnancy complications to be charged with assault and potentially imprisoned.

The bill would permit women to be charged with assault – theoretically up to the point of aggravated assault, which incurs a maximum penalty of 15 years in prison – if they have pregnancy complications after using illegal drugs or deliver children with “neonatal abstinence syndrome.” The original bill allowed women to be charged with homicide if her fetus or baby died, but was later amended. The bill was also amended to give women the option of abandoning all charges if she voluntarily enters an approved treatment program, although advocates say the measure would discourage those women from seeking care in the first place.

Advocates worry that the language of the bill is broad enough to subject any woman with pregnancy complications to a criminal investigation. “The law itself, even though it permits women to be charged with misdemeanor assault, in no way limits the prosecution to misdemeanor assault, nor does it limit the prosecution to women who are illegally taking narcotics,” Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women, told RH Reality CheckShe asserted that any woman who loses a pregnancy or delivers a child with health problems could face an investigation, because it “is the only way to rule out an unlawful act.”

Lawmakers in Tennessee attempted to pass similar legislation two years ago, but their efforts were defeated. Instead, the state eventually put the Safe Harbor Act into place, which gives pregnant women struggling with substance abuse incentives to pursue treatment and guarantees that they will not lose their newborns. Medical experts opposed SB 1391, primarily because punitive measures that criminalize pregnancy outcomes discourage women using drugs from seeking prenatal care. Anti-choice groups opposed the bill because they believe it will increase the number of abortions in the state, instilling fear in women who want pregnancies but also face drug addiction.

“Quite honestly,” Gary Zelizer, director of government affairs for the Tennessee Medical Association, told The Tennessean, “any kind of punitive approach, from a health care perspective, drives women underground. It doesn’t encourage them to get treatment.”

Tennessee is the only state to successfully pass legislation allowing criminal prosecution of pregnant women based on the outcome of her pregnancy, although other states have attempted to codify the practice and have successfully used similar logic to win court cases. According to the Guttmacher Institute [PDF], 17 states consider substance abuse during pregnancy to be child abuse, and 3 consider it grounds for civil commitment. 15 states require health care professional to report suspected drug abuse by pregnant women, and 4 require subsequent drug testing. However, only 18 states have drug treatment program that target women, only 10 provide pregnant women with priority access to state-funded programs, and only 4 prohibit discrimination against pregnant women in those programs.

SB 1391 passed the House Wednesday afternoon 64-30, and passed the state Senate Monday 26-7. It is now headed to the desk of Tennessee Governor Bill Haslam.

Media Resources: RH Reality Check, 4/10/2014; The Wire 4/9/2014; MSNBC 4/10/2014; Guttmacher Institute State Policy Brief 4/1/2014

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