Tennessee lawmakers introduce proposal to jail women for their pregnancy outcomes

"Nobody wants to see a mom behind bars," says state lawmaker trying to put moms behind bars

Published March 27, 2014 9:16PM (EDT)

Lawmakers in Tennessee are currently considering two proposals that could lead to the arrest and criminal prosecution of pregnant people found to be using drugs.

"While nobody wants to see a mom behind bars, we need to help them see the seriousness behind the offense and help them get the help they need," said HB 1295 co-sponsor Rep. Roger Kane, a Republican from Knoxville.

According to the current language, the House measure "provides that a mother can be prosecuted for an assaultive offense or homicide if she illegally takes a narcotic drug while pregnant and the child is born addicted, is harmed, or dies because of the drug."

As Bianca Phillips at the Memphis Flyer reports, opponents say that such policies criminalize pregnancy outcomes and can have a chilling effect on people who may want to seek care. (They are correct.)

"These women need supportive programs. Punitive measures will only make women not seek prenatal care. They will lie to their doctors [about their drug use], and it could lead to unwanted abortions by women who are afraid of getting prosecuted and convicted," Allison Glass, the statewide organizer for Healthy and Free Tennessee, told the Memphis Flyer.

Local advocates who oppose the measure are in agreement with major medical associations that have consistently denounced such policies.

According to the American Medical Association, “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.”

The American Academy of Pediatrics agrees: “The [Academy] is concerned that [arresting drug addicted women who become pregnant] may discourage mothers and their infants from receiving the very medical care and social support systems that are crucial to their treatment.”

And so does the American College of Obstetricians and Gynecologists: "Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing. These approaches treat addiction as a moral failing. Addiction is a chronic, relapsing biological and behavioral disorder with genetic components."

Kathy Hartke, M.D., Wisconsin Section Legislative Chair of the American Congress of Obstetricians and Gynecologists, opposes a similar law in her home state, and told Salon last year that these policies have directly hurt her patients: “Women know that if they are using and seek treatment, there is a chance that they may be forcibly put in jail."

“I had a patient a few years ago who presented in need of care, but by the time I arrived at the emergency room, the police had already been called,” she explained at the time. “She was taken to jail without an attorney to represent her, though her fetus was designated a legal guardian. She was then put into a locked mental health ward at another hospital, where she was denied prenatal care for over a month.”

Basically, there is complete medical and professional consensus that the Tennessee proposals, and identical laws across the country, are harmful policy that will do nothing to help pregnant people who are addicted to drugs "get the help they need."

But it appears the Democratic lawmaker who sponsored a version of the measure in the state Senate is listening. Sen. Reginald Tate said he is open to the possibility of removing language that would allow assault and criminal homicide charges to be brought against pregnant people found to be using drugs. "If those are the red flags in the bill for a lot of these women's groups, then I'll either take that out or I'll take the bill off notice," DeBerry said of the proposed changes.

"There is absolutely no intent on simply trying to incarcerate them," he continued. "But some women's groups were afraid, even with the drug court's record, that someone will use this as some kind of stick against pregnant women."

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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