Tennessee Governor Bill Haslam signed into law yesterday a bill that will allow criminal charges to be brought against women who suffer from drug-related pregnancy complications – legislation which advocates fear will deter women with addiction from seeking out resources and could even be interpreted more broadly to criminalize non-drug related complications.

“Today, the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse,” said Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project, in a statement. “This deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time.”

SB 1391 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.” According to RH Reality Check, the bill will also single out users of illegal street drugs, even though prescription painkillers are involved in 41 percent of Tennessee cases when infants are born with addiction.

The original bill allowed women to be charged with homicide if the 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. However, advocates say the bill itself will discourage those women from seeking care in the first place. Medical associations like the American Medical Association and American Academy of Pediatrics have spoken out against these types of bills because they push women out of the health care system for fear of prosecution. Due to its vague language, advocates have expressed that it could cause investigations to occur whenever women suffer from complications, regardless of drug use.

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 casesAccording 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.

Media Resources: ACLU 7/6/10, 4/29/14; RH Reality Check 4/29/14; Tennessee Senate; Feminist Newswire 4/11/14

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