Unhealthy laws in need of emergency response: Tennessee criminalises pregnant women who use drugs

By Farah Diaz-Tello, National Advocates for Pregnant Women (USA) and Sebastian Saville, International Doctors for Healthier Drug Policies

This week, despite an extremely inclusive and far-reaching campaign of multiple agencies both in US and internationally, US state Tennessee passed a law that permits assault charges for women who engage in any ‘unlawful’ act that may result in adverse pregnancy outcomes. Much attention has been on how it will be used to punish women addicted to drugs even though this is against advice and evidence from international medical and public health experts. However, while receiving less publicity, of even more concern is the huge discretion given to prosecutors in the application of the law. Depending on the prosecutor, for the same offence, a woman may be charged with a misdemeanor and diverted to a drug court program or instead charged with aggravated assault and sentenced to 15 years in prison.

It is fair to assume that African-American women, because they are most susceptible to poorer pregnancy outcomes regardless of drug use or socioeconomic status, will be punished most severely.

Cherisse A. Scott, founder and CEO of SisterReach, an advocacy organization focusing on African-American women, said in a statement, “This law separates mothers from their children and is not patient-centered. Tennessee families who are already being hit the hardest by policies such as the failure to expand Medicaid, poverty and a lack of available drug treatment facilities will be most deeply impacted by this bill. Mothers struggling with drug addiction in Shelby County, rural communities throughout Tennessee and poor mothers and their families will be the ones who suffer the effects of this dangerous legislation the most.”

A 2013 study in Duke University’s Journal of Health Politics, Policy, and Law shows that these concerns are well founded. Documenting 413 cases of arrests, detentions, and forced medical interventions upon pregnant women, the study found that when laws intended to protect women are used against them, the ones who suffer most are low-income, African American women in the US South.

The impact of this law will be felt by women more broadly: the study’s authors conclude that laws and policies that make women criminally accountable for pregnancy outcomes are part of a larger effort to establish that women should have a separate and unequal set of legal rights than others. Tennessee’s new law addresses a health concern as a matter for criminalization but even worse, it treats pregnant women as a population who can be singled out for special control and surveillance by the state.

Although extremely disappointed that the Governor of Tennessee chose not to veto the law, International Doctors for Healthier Drug Policies (IDHDP) will continue to challenge this law and to support health-based policies to replace those that seek to punish already marginalized populations.

IDHDP and National Advocates for Pregnant Women (NAPW USA) ask for your support to continue the challenge of this law, to challenge the arrests that have already happened and will continue to happen, and to build on the coalition led by reproductive justice organizations, including NAPW, SisterReach, Healthy and Free Tennessee, Young Women United, SisterSong, with the powerful support of RH Reality Check, to expose the appalling harm this law will do.

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