Last week Tennessee passed legislation that would make drug use during a pregnancy a criminal offense. If the governor doesn’t veto it, the state would be allowed to investigate every miscarriage, stillbirth, and baby born with birth defects to try to determine if drugs played a role, turning any pregnant person into a potential suspect.
We’ve written extensively before about the growing criminalization of pregnancy, but Tennessee’s law is actually a first. While hundreds of women — mostly poor, young, Black women who used drugs — have been held criminally liable for the outcomes of their pregnancies under “fetal harm” laws, those laws were never actually intended to the be used that way. If Tennessee’s bill becomes law, it would be the first state in the country to explicitly criminalize harm due to drug use during pregnancy.
Lawmakers crafted the bill in response to reports that cases of babies born with “Neonatal Abstinence Syndrome” after having been exposed to opiates in utero are on the rise. But 40 medical experts have written an open letter pointing out that NAS does not cause long-term harm and warning that “reporting about this issue that is not based on science encourages policies that undermine maternal, fetal, and child health.” All of the major medical groups in the US think criminalizing drug use during pregnancy is not only ineffective but counterproductive. If women avoid seeking treatment and prenatal care because they’re scared of being thrown in jail if a problem with their pregnancy is discovered (and again, that is a legit fear because THAT’S WHAT THIS LAW DOES), the health risks — for both fetus and pregnant person — increase.
The law allows an exception to criminal prosecution if “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.” Tough luck, I guess, for folks who don’t have access to a treatment program. As Cherisse Scott of SisterReach explains, ”It’s poor women, black and brown women, rural women who will be criminalized.”
And the law is vague enough that it could be used against women who commit a variety of “unlawful” acts while pregnant. As Farah Diaz-Tello, a lawyer with the National Advocates for Pregnant Women, explains, “The law is so broad that it could lead to charges against a woman who drives recklessly, gets in an accident, and then loses pregnancy. It could also be used against women who try to self-induce abortions. She becomes a criminal due to unlawful pregnancy loss.”
Maya Dusenbery is an Executive Director of Feministing.