Tennessee Legislature Passes Far-Reaching Bill That Could Make Pregnant Women Criminals


Read more of our coverage on the Tennessee Pregnancy Criminalization Law here.

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.”

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  • ansuz

    Well, shit. What’s the rate of (noticed) miscarriage, stillbirth, and birth defects (or whatever the appropriate term is)? I’m pretty sure it’s greater than 50%. How many uterus-havers will choose to procreate when they’ve got a fifty-fifty chance of ending up the subject of a criminal investigation (though, of course, the law will not be applied evenly)?

    • L-dan

      Oh, you know that’s not how the odds will go. If you’re a reasonably well-off white lady who miscarries, you will be offered sympathy for your loss.

      If you fit any ‘suspicious’ categories, you’ll be under investigation, with the remains whisked off as evidence.

      • Dez

        Black and poor. Another way to kick us when we’re down.

        • Shan

          No shit. They always go after the most vulnerable.

        • goatini

          Well, now that the former “mandatory” drug sentences are being reduced, they need bodies to fill their for-profit prisons.

          • Arekushieru

            Personally, in a perfect world (where the drugs/drug mixtures could be easily tested with even a ‘simple’ road-side breath analyzer, much like alcohol levels are, today, etc…), I would think all drugs should be legal to a certain extent, regulated in a similar manner to the way alcohol and cigarettes currently are. Of course, every drug would have a different ‘criminal threshold’ (but which would also take into account addictions and appropriate remedies) according to how powerful each of their effects are.

            It’s kind of weird that you brought up that, today, especially given what I’ve said above, since a report of the number of pharmacies that have been robbed was printed in the local newspaper, today. And some of the robberies were attributed to people who had drug addictions being over-prescribed generic versions of Oxycontin rather than Oxyneo.

      • lady_black

        To be fair, I don’t think miscarriages count.

        • Shan

          “I don’t think miscarriages count.”

          I wouldn’t count on that.

        • colleen2

          I’m pretty sure they will if a woman seeks medical help during or after a miscarriage. The law will be applied about as evenly as the syg laws in the south. I think it’s important to understand and accept that we no longer have anything CLOSE to equal justice under the law and that there are a whole series of laws being developed designed to be applied in a manner that reveals the social hierarchy so beloved by Republicans. Fucking over the those of us who are not white, male, and conservative is what the Religious Right calls ‘Biblical Values’.

        • Kim Umphrey

          If they can attribute the miscarriage to an unpopular lifestyle choice, they will be able to. And, it would be very difficult to refute, as it can be very challenging to prove the cause of a miscarriage. On the other hand, they could use pseudo science and mis-conceptions (no pun intended) to validate their side. Don’t like lesbians becoming pregnant? Charge them for “causing” a miscarriage by using a too-large dildo during sex. Not that ridiculous, when you look at some of the things that have happened already!

          • lady_black

            Well, you see, having an “unpopular lifestyle choice” isn’t a crime! So nothing that results from an “unpopular lifestyle choice” can be a crime. As to the best of my knowledge, a crime has to be proved beyond a reasonable doubt. And while criminal justice wasn’t my strongest subject, nobody knows why miscarriages happen. Not even doctors. I am fully aware of some of the things that have been happening. And I’m appalled. What will happen is that people will just go underground. It won’t work the way they think it will. And some judge will slap these prosecutors back into their places.

          • Kim Umphrey

            That’s actually my point. The charges wouldn’t necessarily be based on real science. And, because it’s hard to prove the cause of a miscarriage, it’s hard to prove what didn’t cause it, too. You get an area with a very prejudiced law enforcement and/or prosecutors, and you could very well get charges like these. You wouldn’t even have to successfully prosecute, as you could do a lot of damage just by the accusation. That could be enough to run someone out of town, for instance. They may eventually get their wrist slapped, but it could take a while, and may have to come from a pretty high level of the court. Remember, what a judge says is law, until it’s countered by another judge!

          • lady_black

            You don’t need to prove what “didn’t” cause a miscarriage. Having a miscarriage isn’t illegal. No judge is going to open the door to such specious charges. Until there is no such thing as pregnancy complications, the law has no right to judge pregnancy outcomes. Some sick people are trying awfully hard to do so, but fortunately the sane people always rule the day.

        • NoMoreFalseGods

          Tell that to Nicaragua, that is where America is headed.

          • lady_black

            Nahhh.

  • Mindy McIndy

    All of this anti-women legislation being passed is just making me even happier that I am a lesbian married to another woman who doesn’t want children either, and that I will be moving to Ontario in the next couple years. This shit is just getting to be too much.

    • redjelly39

      30 years ago I never thought the USA would be so retarded and the slide backwards is mind-boggling. The female Governor in Oklahoma voting against a minimum wage hike for women is just downright mean.

  • Shan

    “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.”

    What a flaming idiot.

    • lady_black

      Uh yeah… no they don’t need that ability.

    • L-dan

      Don’t they already have the ability to prosecute them for illegal drug usage? What’s the point beyond that?

      • Shan

        I kind of thought the point was to give pregnant women a pass on the prosecution for illegal drug use so that they would feel SAFE to go somewhere so that they could get TREATMENT for while they’re pregnant. Which concept gets totally blown out of the water when even IF they take the risk of doing that women can still get prosecuted if their pregnancies don’t end up all bluebirds and rainbows perfect.

        • Arekushieru

          I think that prosecuting a woman because she used illegal drugs while pregnant only punishes her twice.

    • Karie Ryan Ordway

      At least they’ve stopped using the word “protect” when they actually mean “prosecute”.
      Must be they’re not ashamed anymore to admit their real motives.

  • cjvg

    So where are these MRA’s complaining that these kind of laws are wrong because they will be used by exes who are holding a grudge for being dumped?!

    Or are those supposed misuses of laws only a problem when it can conceivably be used against a man?!

    • Shan

      Oh, lordy, don’t INVOKE them!!

      • farrellkej

        Think this through.

  • fiona64

    What a bunch of hooey.

  • CocksackieBJ

    That’s no fair. I always wanted a crack baby.

    Screw you Tennessee.

    • Shan

      I know, right? I’ve been waiting for YEARS to be criminalized for having a miscarriage due to being too old to carry to term. Yay for women 40+ having a 50% chance of miscarrying!

      (gak)

    • Arekushieru

      No wonder so many women have abortions. With ignorant asses like yourself running rampant. This won’t prevent a ‘crack baby’ from being born. All it will likely do is bring slobs, like yourself, out of the woodwork claiming that these babies should never be adopted, contradicting the Pro-“life” argument that women could relinquish their children instead of having an abortion (which is already a contradiction, in and of itself, because they only want to adopt healthy white newborns, never older teens with behavioural issues that will age out of the system, soon), but, AT THE SAME TIME, put pregnant women’s health at risk, more likely leading to an abortion. Of COURSE! I FORGOT! All your ‘responsibility’ crap is just that. Crap. You like to talk the talk but not walk the walk that you would like to enforce on everyone ELSE.

      • Shan

        I think the OP was being sarcastic. Like I was below.

        I hope.

        • Arekushieru

          No, unfortunately, he wasn’t. This is CBJ Uno, the most recent troll we’ve seen on this site. I wish he was, but I’m pretty sure he isn’t. :(

          • CocksackieBJ

            Yes, I was being sarcastic.

            If you knew what sarcasm meant, you’d know that hyphenman. Unless you thought I actually want a crack baby.

          • Guest

            I think you do want a crack baby. Grab that pipe, squat, spread ‘em and grunt out that little addicted grub. Live the dream!

    • Lieutenant Nun

      So you would prefer more abortions instead?

      • CocksackieBJ

        Nope, just more crack babies. They’re so cute.

        • Lieutenant Nun

          Crack baby myth debunked, sockpuppet of cjb_uno and other dumbshits

          http://blogs.discovermagazine.com/gnxp/2013/07/debunking-the-crack-baby-myth/

          • ansuz

            I’m debating: should I explain my issues (minus the gender issues; not talking about that in a Catholic space) to the dismissive, tough-love person on Bad Catholic in such a way that they feel badly about what they said and (hopefully) realize why it’s wrong, or would I be wasting my time?
            The alternative is something to the effect of this:
            My tokophobia is not sad, I’d rather that people not talk about praying for me, please don’t call me ‘girl’, you’re not my doctor or any of the mental health professionals I am in regular contact with, I don’t need an excuse for birth control, and why the hell would you wish for reality to hit me hard [which... I see no interpretation that does not somehow mean 'I wish for bad things to happen to you'] and for me to get my IUD out [seriously, the contents of my uterus are not your business]?

          • Lieutenant Nun

            I’m not sure. I would say go for #1, just to see how they react. If they continue to be horrible, you look good and they look awful.

            But if you done have the spoons, just do 2.

  • Amanda Kazarian

    What about women on prescription drugs that can cause miscarriage? Not a very thought out idea.

  • Ken Abraham

    These fools should win a “headed the wrong way” prize! TREATMENT, not prison, for addicts!

  • Ineedacoffee

    That is beyond scary
    All it will do is make women go underground to carry, continue to use their drug of choice (legal or illegal) and birth
    Well done Tennessee, you just signed the death certificates of not only the unborn your APPARENTLY trying to help but living breathing mothers

  • Kim Umphrey

    The really scary thing is, from how I understand the article, it’s not limited to illegal drug users. It could be extrapolated to persecute a woman who has a non-perfect outcome (could still be a good outcome! ) from refusing a doctor-recommended c-section. If this bill is approved, it will take ALL rights away from pregnant women.

  • DME

    Wow, when are these Tea Party jerkoffs going to start pushing for legislation that isn’t about punishing, judging, vanquishing and destroying lives? Why are they so evil?

  • lillapoyka

    fine with me. If I’m going to foot the bill for somebody’s F’d up drug baby, momma might as well be in prison.

  • luckymama

    Sarrah – Your kids turned out fine and you were doing the best you could for all of you to be healthy; therefor, you wouldn’t have been prosecuted. I don’t necessarily support the law, but i am not sure you understand it, either.

    • goatini

      Actually, I’m 100% sure that YOU do not understand this law, nor how it would be applied.

    • Ella Warnock

      I think she understands perfectly well that under this invasive sort of law, if someone wants to make an innocent situation like hers into a problem (or a crime), then they’ll have all the authority they’d need to do so.

    • Jennifer Starr

      I think she understands it better than you do. And you have no idea who would be prosecuted under a draconian law like this one.

  • redjelly39

    What about the complications from prescribed pharmaceuticals ? Everyday we learn more about some Big Pharma drug that is damaging to pregnant women (& their babies) and they need to be factored into the process…

  • Ella Warnock

    “Of course, they’ve convinced far too many women that everything is an attack on their genitalia,” is a lovely sentiment from someone on a fundy conservative site.

    So, I don’t think these ridiculous ideas are an attack on ME as an INDIVIDUAL, a person in my own right? I just think it’s an attack on my “genitalia” and doesn’t involve any other part of my body and *certainly* doesn’t involve my BRAIN. Now who is it, again, objectifying women? Nope, can’t dare give a woman credit for being a person who might want to space her children or not have any at all. No credit for women who worry about how a pregnancy or birth or abortion will affect their entire lives; nope, we only ever consider our genitalia.

    • Lieutenant Nun

      Its cuz women who are pro choice are just ‘thinking with their vaginas’. Its all about the sex with them!

  • fiona64

    why does the US have such a punative approach to so many social issues,

    Three words: for-profit prisons.

  • Kathryn Ranieri

    The prison industrial complex needs to fill their beds. They’ve decimated the African American population, the poor white meth dealers and now they’re coming for pregnant women. What group will be next?

    • tigalily

      The children obviously..that’s why they want them born so bad.

  • tigalily

    Well…now no one is going to share they are pregnant if it’s unplanned/unwanted. Good job Tennesse, killing poor women left right and…well from the right.

  • TrieshRetired

    At this rate, no woman would want to get pregnant and when the US isn’t reproducing enough, then Women will be forced to GET PREGNANT. I’m glad that this is far more important than trying to help grow the economy, and the Republicans don’t have a War on Women. I think it should be a criminal offense to use Viagra, but old, disgusting men use it anyway!!

  • TrieshRetired

    We are going so far back it isn’t funny. All the women that fought for our Civil Rights, Equality, and Roe vs Wade, for them to do this is UNCONSTITUTIONAL and it infringes on OUR RIGHTS!! The sad part is, the SCOTUS no longer looks at the LAW only their own Personal Beliefs and they all should be IMPEACHED!! You cannot interpret the law so that caters to your own personal beliefs. As a JUDGE, you are to set aside personal and look at what the LAW SAYS!!

  • TrieshRetired

    SB1391
    by Tate : Criminal Offenses – As introduced, 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.

  • TrieshRetired

    SB 1391 by *Tate, Gardenhire, Bowling, Burks. (HB 1295 by *Weaver, Watson, Rich, DeBerry J, Womick, Lundberg, Rogers, Sexton, Bailey, Brooks H, Eldridge, McManus, Matheny, Roach, Shipley, Coley, Hardaway, Lollar, Floyd, Powers, Doss, Carter, Shepard, Todd, Lynn, Hawk, Spivey, Travis, Goins, Littleton, White M, Wirgau, Mitchell, Dean, Hall, Williams R, Durham, Ragan, Kane, Lamberth.)

    Criminal Offenses – As introduced, 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. – Amends TCA Title 39.

    Fiscal Summary

    (CORRECTED) NOT SIGNIFICANT

    Bill Summary

    ON MARCH 6, 2014, THE HOUSE ADOPTED AMENDMENTS #1 AND 2 AND HELD HOUSE BILL 1295 ON THE DESK.

    AMENDMENT #1 rewrites this bill to provide that a woman may be prosecuted for an assaultive offense for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant. It is an affirmative defense to a prosecution permitted by this amendment that the woman actively enrolled in an addiction recovery program before the child is born, remained in the program after delivery, and successfully completed the program, regardless of whether the child was born addicted to or harmed by the narcotic drug.

    The provisions of this amendment will cease to be effective on June 30, 2014.

    AMENDMENT #2 changes the termination date of this bill from June 30, 2014, to June 30, 2016.

    ON MARCH 31, 2014, THE SENATE ADOPTED AMENDMENT #1 AND RESET SENATE BILL 1391, AS AMENDED.

    AMENDMENT #1 makes the same changes as those described above for House Amendments #1 and #2, except that it limits the bill to prosecution for assault, instead of any assaultive offense and clarifies that the bill will cease to be effective after June 30, 2016.

    ON APRIL 7, 2014, THE SENATE FURTHER CONSIDERED SENATE BILL 1391, AS AMENDED BY AMENDMENTS #1 AND #2, AND PASSED SENATE BILL 1391, AS AMENDED.