December 16, 2015 — A Los Angeles Times editorial calls on Tennessee lawmakers to sunset a 2014 state law (SB 1391) that "allow[s] women who give birth to babies 'harmed by' illegal drug usage to be charged with misdemeanor assault."
The editorial states, "Under the law, 'harm' can mean various things, but the impetus for it was the number of babies being diagnosed with neonatal abstinence syndrome." According to the editorial, "Other states have found ways to prosecute pregnant women" for drug use, "but Tennessee is the first state to pass a specific law allowing women to be charged with a crime if their children are born drug-dependent."
The editorial notes that critics of the law say that despite its purported intent to encourage women to get treatment, the law instead makes "pregnant women afraid to get prenatal care, lest they be arrested." The editorial cites "plentiful" anecdotal evidence in support of such criticism, with one physician discussing how such patients "have avoided seeing a doctor for prenatal care," presented for care only late in pregnancy or while in labor, or delivered at a different location "to avoid being identified as a drug [user]."
According to the editorial, 30 women as of early 2015 had been arrested under the law, with one woman spending time in jail and several of the others going into treatment. Further, the editorial explains that "not every drug-using pregnant woman is a law breaker," with some women taking legally prescribed medication to treat depression or pain, or to help them recover from drug use. The editorial states that while the law permits a woman to "defend herself by saying she was legally taking the drugs ... she might be charged first and then have to go to court to exonerate herself." Women involved in roughly half the "895 ... cases of [NAS] reported this year" in the state "were only using drugs that had been prescribed for them," the editorial adds.
In addition, the editorial notes, "There's not enough space in Tennessee's drug treatment programs to accommodate all the woman currently seeking treatment." According to the editorial, only 11 of Tennessee's 39 treatment facilities accept pregnant women. Further, "methadone programs do not accept Tennessee's version of Medicaid," and while an alternative drug used to treat substance use, buprenorphine, is covered, "there are not enough doctors certified to prescribe it to meet the current need."
State lawmakers, when passing the law, "set it to expire in July 2016 so they could reevaluate it," the editorial continues. Urging state legislators to allow the law to sunset, the editorial concludes, "The best way for Tennessee and other states to get" pregnant women who use drugs "into treatment is to make it easier for them to find it, not to incarcerate them if they don't" (Los Angeles Times, 12/14).