In this week’s addition of “What the Actual Hell, Tennessee?!” the state legislature gave final approval to a bill last week that would put pregnant women who suffer pregnancy complications due to illegal drug use at risk of prosecution for criminal assault or homicide. The bill now just needs the governor’s signature to become law.
While I think most people would agree it’s a horrible tragedy when a baby is born with addiction or physical or developmental problems due to illicit drug use, criminal prosecution will compound poor outcomes for fetuses and pregnant women rather than prevent them.
Though the new law allows women to avoid criminal prosecution if they seek treatment for their addictions, opponents in the women’s health community say the law is so vaguely written that any pregnant woman could be vulnerable, even those not using illicit drugs. Farah Diaz-Tello, a staff attorney with the National Advocates for Pregnant Women, says any woman who suffers a complication or a miscarriage could be charged, “…because criminal investigation is the only way to rule out an unlawful act.” Considering that the miscarriage risk for all women is 10-25 percent, a lot of women could be impacted. The loss of a wanted pregnancy is a terrible tragedy, and compounding that loss with suspicion of wrongdoing is detestable and inhumane.
As someone with chronic pain who needs to take certain commonly abused medications to function, I can easily see how this bill harms pregnant women who face difficult, personal choices. A woman who takes potentially-harmful medications needs to weigh the risks of use while pregnant with her doctor, not with her state’s legislature. Though this bill specifies illegal drug use, the fact that any complications could be cause for criminal suspicion might lead many pregnant women to forgo needed medication out of fear of a criminal investigation.
And as for pregnant women who abuse illegal drugs, this law is still counter-productive and frankly, insulting. Americans increasingly see drug addiction as a medical condition that requires treatment, not punitive action. Yet Tennessee’s lawmakers are treating these women as criminals who vindictively prey on their own children. Their decision comes despite multiple health agencies—including the American Medical Association and the American Pediatric Association —voicing opposition to the punitive approach because fear of jail or loss of custody could drive many pregnant women to forgo needed prenatal care. As the American College of Obstetricians and Gynecologists says, “Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties… These approaches treat addiction as a moral failing. Addiction is a chronic, relapsing biological and behavioral disorder with genetic components.”
This isn’t the first bill in Tennessee intended to grant unborn babies personhood at the expense of pregnant women. In 2012, the state passed another law that required hospitals to report babies exposed to drugs in utero. Tennessee Health Commissioner Dr. John Dreyzehner referred these children as, “…helpless babies, blameless babies born dependent on addictive drugs their mothers used during pregnancy…” Though he acknowledged that many of these women use those drugs to treat chronic pain or addictions, the implication is still that their children are innocent victims of their selfish choices and all sympathy should lie with the babies.
And Tennessee isn’t alone in the push to extend human rights to fetuses at the expense of their mothers’ basic human rights. In Mississippi, a teen addicted to cocaine was charged with murder after her baby’s stillbirth in 2006—she faces trial this spring and could receive a life sentence. An Iowa woman was arrested for attempted fetal homicide after she fell down a flight of stairs while pregnant in 2010. In Indianapolis, a pregnant woman who attempted suicide in 2011 was charged with murder because her baby didn’t survive the attempt.
The precedent these cases set is dangerous for pregnant women. If we accept the notion that putting your baby at risk for impairment or addiction during pregnancy is a crime, where do we draw the line? Do we arrest women who smoke, have a glass of wine or fail to take prenatal vitamins? What about women whose doctors have prescribed bed rest, but who work anyway out of choice or necessity—should they face prosecution?
Though these laws are seemingly about protecting the most vulnerable in society, sometimes even operating under the pretense of increasing rights for pregnant women, the actual intent is to grant personhood to unborn children. And while parents can and should accept responsibility for their children’s well-being, extending the right of legal protection to unborn children necessitates denying pregnant women their right to bodily autonomy and reduces them to mere gestation vessels. In other words, it denies their personhood.