Reproductive Rights Activists Fight to End Law Criminalizing Drug Use By Pregnant Women 

Tennessee's "pregnancy criminalization law" is set to expire next year.

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For the next eight months, a coalition of women's healthcare advocacy groups will be doing everything they can to ensure that SB 1391 — labeled the "Tennessee Pregnancy Criminalization Law" by its opponents — will ride into its sunset of expiration without any further legislative action.

The law, which allows women to be charged with assault for using illegal substances during pregnancy, was written in response to Tennessee's rapidly increasing problem with infants born with Neonatal Abstinence Syndrome (NAS), which causes treatable, but painful, withdrawal symptoms in infants born to mothers who have abused substances during their pregnancy.

In an unusual move for a criminal statute, the bill included a sunset provision of two years. So the law, which went into effect last July, is set to expire in July 2016. At that time, legislators can consider whether or not to pass a more permanent version of the law.

While the intention of the law may have been to discourage expecting mothers from using addictive substances, some advocates and healthcare professionals insist that the law will tear families apart and criminalize already vulnerable mothers.

"In a lot of spheres, addiction is seen as a health issue, as a disease. But, now if you have a woman who is pregnant, all of the sudden she's a criminal," said Allison Glass, the state director for Healthy and Free Tennessee, a nonprofit coalition of groups dedicated to sexual health and reproductive issues.

On October 15th, Healthy and Free Tennessee, along with several coalition partners, met at the Memphis Gay and Lesbian Community Center to discuss their concern with the pregnancy criminalization law, as well as strategies to ensure its expiration. Memphis was one of five of the coalition's stops across the state.

According to Glass, the law was written vaguely. Whether or not a mother is reported for her infant testing positive for illegal substances is up the discretion of the healthcare provider.

Further complicating the matter, the law was passed on the heels of the Safe Harbor Act, a piece of legislation designed to protect mothers from prosecution if they seek help for substance abuse of legally prescribed drugs. This means the difference between the possibility of treatment and the threat of jail lies in not only the type of drug but whether or not it was prescribed to the mother.

"We have a really imbalanced way of dealing with this issue," Glass said. "It creates a second class of people who are pregnant."

The Tennessee Department of Health began tracking reported cases of NAS in 2013. In the years since, more than half of all reported cases were caused by substances prescribed by the mother's doctor.

Exactly how many Tennessee residents support, or even know about the law, is unclear. Glass believes that educating the public will be key to ensuring the law expires on its sunset date of July 1, 2016.

"We're trying to help educate folks. It's an incredibly complex issue. What we're saying also is that medical experts, people in public health, and people who are experts in treatment facilities ... those are the people who need to come together and think about what needs to happen to solve the problem," Glass said. "This is not a place for our legislators to be passing a law and certainly not through the criminal justice system."

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Speaking of Healthy & Free Tennessee, Allison Glass


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