New Tennessee Law Criminalizes Moms, Turns Doctors Into Informants
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Just as we learn about LA Clippers owner Donald Sterling’s racist comments and the media storm that erupted in its wake (Sterling has received a lifetime ban from the NBA), a far more wide-reaching eruption of American racism appeared with significantly less media attention. The shocking news: Tennessee has earned the distinction of being the first state to explicitly make drug use during pregnancy a crime, a policy which will unduly burden minority women. The law will take effect July 1.
While the criminalization of pregnancy story captured some media headlines, the full effect of what this law threatens has yet to be understood and discussed on a national scale. Despite vehement opposition by medical organizations and the American Civil Liberties Union, Tennessee governor Bill Haslam signed into law SB 1391, which provides 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.”
Ironically, rather than being an anomaly among states, Tennessee is the most recent state to join in a nationwide attack on pregnant women’s constitutional liberties based on their conduct during pregnancy. In recent years, legislators across the country have pushed through punitive fetal protection laws that ensnare women for a broad range of conduct including falling down steps, suffering drug addiction, refusing cesarean sections, or attempting suicide. In fact, state statutes are the primary means through which legal sanctions affecting pregnant women’s autonomy, privacy and liberty are introduced and shaped.
Arrests and civil incarcerations of pregnant women in Florida, Iowa, Indiana, Mississippi, Wisconsin, South Carolina, Utah, Wisconsin, New Mexico, Alabama, and Texas merely scratch the surface of a broad attack on the legal rights of pregnant women. Overwhelmingly, the women most harmed by these laws are poor, many of them struggling single mothers whose children enter the troubling world of foster care after their mothers’ arrests. And, as studies show that African American women are 10 times more likely to be reported by their physicians for using illicit drugs than their white counterparts, likely racial disparities will result.
One of the problems with laws like Tennessee's is that criminal sanctions against pregnant women single them out for unique and disparate treatment. Not only is this unconstitutional, it risks selective enforcement against poor women for their addiction to street-level narcotics, despite the fact that the fastest growing population of addicts in Tennessee are prescription drug users.
No one doubts the anxieties and pains that can attend pregnancy, but legislators draw strict and arguably arbitrary distinctions between prescription narcotics and street drugs when used during pregnancy. Such distinctions, which are now built into law, give the wrong impression that dependency on prescription medications is somehow in a different moral and medical category than addiction to street level opiates.
But there are other problems with such laws as they rely on stereotypes rather than real science. For example, such laws presume all fetal outcomes rest on maternal behavior. This dangerous and highly suspect presumption was rejected by the Supreme Court nearly 25 years ago in its landmark decision, International Union v. Johnson Controls. In that case, the Supreme Court reminded companies that restricting female employment opportunities (because women employees might become pregnant) is illegal, even if fetal harms might result from female employee’s contact with dangerous substances. The Court ruled that male health may have just as much bearing on fetal outcomes as women’s health. To discriminate against women based on protecting their fetuses or future offspring was unconstitutional.
International Unionwas hailed as a victory for women’s equality. However, much earlier the Supreme Court ruled that states cannot erect laws that discriminate against individuals on the basis of their drug addictions. In 1962, the Supreme Court ruled in Robinson v. California that it would be “barbarous” for a state to punish a person for being a drug addict. Justice Stewart wrote, “even one day in prison would be a cruel and unusual punishment” for an arrest based on drug addiction, which the Court held is a status. The Court reasoned that prosecuting drug addicts for being drug addicts would be like criminally punishing a person for having a cold or flu or for being “mentally ill” or “syphilitic.”
What can be learned from Supreme Court precedent is that even for benevolent purpose, such as protecting the health of the unborn, states cannot engage in unconstitutional behavior. In this case that includes singling out pregnant women for disparate treatment and punishing them for being drug addicts.
Laws like that in Tennessee may produce problematic outcomes such as driving pregnant women away from seeing their doctors and obtaining prenatal care for fear of arrests. Yet, these types of services are vital. And even if states believe pregnant drug addicts are better off in prison, studies show such presumptions are deeply misguided.
Studies in Baltimore and Oregon show that drug-addicted women fare much better in drug rehabilitation programs than in prison; they are more likely to gain employment, earn GEDs and maintain stable housing. Their rates of recidivism are significantly reduced. Such successes are not mirrored in women incarcerated for drug offenses; in part because access to drugs is not eliminated in prison. Quite the opposite is true; drug trafficking is robust in U.S. prisons. Lawmakers in Tennessee claim that pregnant women have drug treatment as an option. However, Tennessee has very few drug treatment programs that admit pregnant women—less than a handful in the entire state.
But, it’s not just women or those women with the likelihood of becoming pregnant who should be concerned about criminalizing pregnant women’s conduct. Men too should care. We are all impacted when states promulgate criminal laws that mete out punishment arbitrarily, particularly as states rely on medical providers to breach confidential patient information in order to achieve such goals. Legislators know that the only way Tennessee’s law will work is for doctors to inform on their patients by releasing confidential patient information. This sets up a very dangerous trend.