The Tennessee state Legislature recently passed the first bill in the nation that would charge a woman with criminal assault if she uses illegal drugs during her pregnancy and her fetus or newborn is considered harmed as a result. It's an unprecedentedly punitive proposal, though a sadly unsurprising one in the current political landscape; an additional 17 states currently consider prenatal drug use a civil offense, South Carolina holds drug use during pregnancy as child abuse, Alabama prosecutes pregnant women using a law intended to protect children from explosive meth labs, and a patchwork of statutes across the country have been used to arrest, detain and incarcerate women because of their pregnancies.
The measure, which Republican Gov. Bill Haslam has only days left to sign or veto before it automatically becomes law, has been denounced by reproductive rights advocates, medical experts and public health officials in the state. It has also produced a striking divide between a usually unified bloc -- pro-life Republicans in the General Assembly.
"I represent a rural district," Republican state Sen. Mike Bell, one of the seven Republicans in the state Senate to vote against the measure, told Salon. "There's no treatment facility for these women there, and it would be a substantial drive for a woman caught in one of these situations to go to an approved treatment facility. Looking at the map of the state, there are several areas where this is going to be a problem."
His concerns are well-founded. According to research from Healthy and Free Tennessee, only two of the state's 177 addiction treatment facilities that provide on-site prenatal care allow older children to stay with their mothers while they are undergoing treatment. And only 19 of these facilities offer any addiction care specifically oriented toward pregnant women. The problem of access is further compounded by Tennessee's current refusal of the Medicaid expansion; according to recent data, the uninsured rate for people aged 19-39 hovers around 25 percent in the state, leaving many women without reliable access to basic medical or prenatal care, much less drug treatment.
But when Bell raised the issue of access during a committee hearing on the measure, he says the testifying district attorney told him to simply trust that law enforcement wouldn't prosecute any woman who wanted to get into a drug treatment program but couldn't. "Now as much as I would like to believe that, I do know that you can't always trust people to do the right thing -- and the right thing here is not to criminalize or prosecute a woman who wants help."
And this is perhaps what's at the heart of the divide between Bell and a majority of his colleagues in the state Legislature -- both Republicans and Democrats who support the measure. What does help look like in these cases? What's the best way to ensure women have healthy pregnancies, and that babies born with opiates and other drugs in their systems -- a documented, though treatable, health problem the state is confronting -- get the care they need?
For Republicans like state Rep. Terri Lynn Weaver, who sponsored a version of the bill in the House, help is a "velvet hammer" -- a term that's been thrown around in this debate to mean a reliance on prosecutors to drive women into drug courts with the threat of criminal penalties, including jail. "We're not about jailing a bunch of women and throwing away the key; we're about getting them help," Weaver told Salon. "But now you know that you can't make someone help themselves."
Bell expressed skepticism that law enforcement should be trusted to handle a health issue like addiction, but Weaver told me that she views police as more concerned about "the life inside the belly" than the pregnant women themselves. "And again, these women [who would be targeted under the bill] are the worst of the worst -- these are coke and heroin ladies," Weaver continued. "These women are not thinking about anything except their next narcotic fix."
On the question of access to healthcare for pregnant women struggling with substance abuse, Weaver directed the conversation back to drug courts and the criminal justice system. "The drug courts continue to be the answer for these women. They are what we have right now," she said. "I don't know what to say about [how] some [women] have insurance and some do not. It's a terrible thing, but I don't want to get into that because that's another subject."
But the American Medical Association, the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists disagree. These and other major medical associations do not consider laws that criminalize pregnant women to be sound policy or anywhere close to a solution to promote healthy women and healthy pregnancies. These groups have cautioned that such measures do not improve pregnancy outcomes and discourage women from seeking prenatal care or treatment for substance dependence because they are scared of being arrested, incarcerated and deprived of custody of their children.
Weaver has a dim view of these experts. "It's kind of frustrating to me, a lot of these people, the medical associations in their plush offices -- and I am going to be blunt -- they are just thinking about the prenatal monies they are not going to get."
The divide between the Republican members of the General Assembly also falls along lines that usually bring them together. Speaking over the weekend, Bell told me that he's concerned that the policy may cause some women to terminate wanted pregnancies for fear of incarceration. "I am pro-life, and I think there is the potential here for pushing a woman to have an abortion if she knows she could be facing criminal prosecution for having a child that is drug addicted."
When I shared Bell's view with Weaver, she was quick to dismiss the possibility that the fear of criminal prosecution would lead some women to seek out an abortion. "That is just not true," she said.
"[Pregnant women who use drugs] don't even think about that," Weaver continued, saying she had personally never heard of such a case and expected that she never would. "That has never crossed their minds."
But Weaver may know less about pregnant women who struggle with substance issues than she believes.
“Criminalizing pregnancy outcomes scares women away from prenatal care and drug treatment and mandates separating mothers from their babies just when they need each other the most,” Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women, said of the measure. "Women who cannot afford private treatment for their addiction and who fear arrest and separation from children they already have may feel as though abortion is the only way to keep their current families together.
"What's missing legislatively in Tennessee and across the board is the voice of families impacted," she told Salon. "Everyone seems to think they are helping these women, but no one has ever asked them what help would look like."
Cherisee A. Scott, founder and CEO of SisterReach, a Tennessee-based reproductive justice group, agrees that the voices of the women most likely to be targeted under such a policy -- overwhelmingly women of color from poor rural areas -- are missing from the conversation. She also pointed out that the law does nothing to increase access to care while threatening women with jail time if they can't get treatment. "Prenatal care is the most important component for healthy outcomes for the mother and baby, and this legislation does nothing to make change in terms of prenatal care and other supportive services," she told Salon.
It's a concern Bell echoed during our conversation: "I absolutely think the state, since it's going to criminalize a woman or make it a criminal act that she can only avoid by going through a drug treatment program -- I do think it's incumbent on the state to make those [programs] available."
While Bell said he had no doubt that the district attorneys and his Republican colleagues who support the measure had good intentions (he had high praise for Weaver's commitment to the issue), he's also worried that there has not been enough thought given to the long-term impact of the bill -- including the costs of increased incarceration, the separation of families, the possibility that women will terminate wanted pregnancies and the simple fact that this measure may do nothing to help women who need it. "Now, don't get me wrong -- I support being tough on these women," he said. "But after eight years in the Legislature, I've learned that then when you look at a measure -- at what could be a new law -- you've got to dig down and look at what may be the unintended consequences."