The Tennessee state legislature gave final approval Wednesday to a bill that allows women to be charged with assault if they have a pregnancy complication after using illegal drugs. Advocates argue that the bill is so poorly written that it could subject any woman with a poor pregnancy outcome to criminal investigation.
SB 1391 passed the house Wednesday afternoon on a 64-30 vote, after passing the state senate on Monday on a 26-7 vote. Since the bill passed both chambers of the legislature, it now heads to the governor’s desk.
Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women, told RH Reality Check that some lawmakers mistakenly believe pregnant women prosecuted under the new law would only be charged with a misdemeanor and referred to drug court for treatment.
“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,” Diaz-Tello said.
In other words, any woman who gives birth to a baby with health problems, or who loses a pregnancy at any stage, could be subject to criminal investigation, “because criminal investigation is the only way to rule out an unlawful act,” Diaz-Tello said.
The original bill allowed prosecuting a woman for homicide if her fetus or baby died, but it was amended to only allow assault charges. The most severe crime a pregnant woman could theoretically be charged with under the new law is aggravated assault, which carries a maximum penalty of 15 years in prison.
Tennessee is the first state in the nation to successfully pass a law like this, allowing for the criminal prosecution of pregnant women based on pregnancy outcome. Other states have tried, especially during the “crack baby” scare a few decades ago, but the proposals have always been defeated.
Last year Tennessee lawmakers battled over similar legislation, ultimately settling on the “Safe Harbor Act.” That act created incentives to get pregnant women who use drugs into treatment programs, and guaranteed that so long as the women continued their treatment, their newborns would not be taken away by the Department of Children’s Services solely because of their drug use. But prosecutors and law enforcement complained that the Safe Harbor Act did not go far enough, and insisted that criminal prosecution based on pregnancy outcome was necessary. Wally Kirby, executive director of the Tennessee District Attorneys General Conference, explained law enforcement’s position to reporters last year, when the Safe Harbor Act was being debated: “We don’t have any problem with these mothers trying to get treatment and trying to get help, but if we have a child that’s damaged because of this drug injection, or stillborn, we need the ability to prosecute these ladies.”
Medical experts are opposed to criminalizing pregnancy outcomes resulting from drug use, because it can discourage women who use drugs from seeking prenatal care, or even encourage them to abort a wanted pregnancy rather than risk prosecution. Even some anti-choice groups spoke against the bill, Diaz-Tello noted, because it could encourage more abortions.
“Quite honestly, any kind of punitive approach, from a health care perspective, drives women underground. It doesn’t encourage them to get treatment,” Gary Zelizer, director of government affairs for the Tennessee Medical Association, told The Tennessean.
Should the measure be enacted, the effects will be far-reaching. Felony convictions in Tennessee result in a revocation of voting rights, while criminal convictions generally make finding future employment difficult, if not impossible.
“If they wanted to pass a law saying it’s a crime to give birth to a baby with neonatal abstinence syndrome [or born addicted to drugs], they could have done that,” Diaz-Tello said. “But instead they did this, which is broader and more devastating.”