House Bill (HB) 1660 and the Senate companion (SB 1629) would remove the built-in expiration date of July 1, 2016, for a criminal code provision — dubbed “Tennessee’s Fetal Assault Law” by reproductive justice advocates — that allows the prosecution and subsequent 15-year prison sentence for any pregnant person who ingests an illegal drug. As written, criminal charges can be avoided by completing a state treatment program — should they be able to find one willing and able to accept them.
“Tennessee’s fetal assault law has harmed the very families it claims to help,” Allison Glass, state director of Healthy and Free Tennessee, said in a statement. “It has resulted in the arrest of more than 30 women. It has torn mothers away from their young children and made them scared to seek care.”
The House Criminal Justice Subcommittee Hearing on HB 1660 at the Tennessee State House is open to the public; supporters could attend Tuesday, March 8 at 1:30 p.m. at Legislative Plaza Room 29. Nearly 40 advocacy groups focusing on reproductive rights, addiction, and/or criminal justice called for the law to sunset, and for the redirection of taxpayer funds being used to imprison sick people who happen to be pregnant at a time when they need treatment. Considering waiting lists for drug treatment in Tennessee can have more than a thousand people on them at any given time, making more help available seems an obvious place to put some of the money currently going to prisons.
There are 95 counties in Tennessee and only 33 state-funded abuse agencies equipped to treat pregnant people — especially important for the low-income population disproportionately affected by the fetal assault law, according to the Department of Mental Health and Substance Abuse Services. Or, perhaps, as only two of Tennessee’s 177 addiction treatment facilities provide on-site prenatal care and allow older children to stay with their parent, lawmakers could work with the other 175 to expand access and address the actual problem: the highly stigmatized disease of addiction.
“Today, the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse,” said Alexa Kolbi-Molinas, a staff attorney with the ACLU Reproductive Freedom Project, in a statement the day Gov. Bill Haslam (R) signed the fetal assault law in 2014. “This deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time.”
Glass has expressed similar sentiments while advocating against the fetal assault law — adding a point that should resonate with supposed fiscal conservatives in the legislature: “[HB 1660] does not do anything to expand services so that low-income parents can complete the required treatment, even though the cost of treatment is just a fraction of the cost of jailing someone. This law is hurting far more people than it could ever help.”
Some of the initial opposition to the law was made on reasonable grounds. Most notably, outspoken conservative Rep. Bill Dunn (R – Knoxville) wanted to know why the sponsors of the bill slapped an expiration date on it.
“I’ve never heard of a sunset provision on a criminal act. Can you imagine a woman is being prosecuted on this and their attorney goes in and says, ‘Judge, the legislature thought so much of this crime that they have it go away in a couple years.’ It doesn’t make sense to do that,” Dunn said on the House floor during debate. “I’m not sure why we’re putting it on if this is a wonderful thing and it’s gonna work and everybody’s on board with it, why you’d put a sunset provision on a criminal law.”
The sunset clause is especially curious as Tennessee is home to the country’s largest for-profit prison company, Nashville-based Corrections Corporation of America (CCA). While CCA told the Nashville Scene they were not active in promoting the fetal assault law, they have eight lobbyists registered to work at the legislature and contributed nearly $60,000 to state politicians — including $10,700 to Gov Haslam and $1,000 and $1,500 to the law’s co-sponsors Rep. Terri Lynn Weaver (R-Lancaster) and Sen. Reginald Tate (D-Memphis), respectively.
The Tea Party wave, “personhood” emphasis within the “pro-life” movement, and the increasing power and prevalence of for-profit prisons have created a perfect storm for more prosecution of pregnant people and those who have recently given birth. As highlighted by the short “To Prison For Pregnancy” — produced by Brave New Films in conjunction with Healthy and Free Tennessee — 38 states have “feticide laws” in one form or another.
Unsurprisingly, when these laws are used with broader reach than advertised at their passage, it is women of color — particularly low-income women of color — who are most often prosecuted for fetal assault. “Those who have been punished for alleged drug use during pregnancy are disproportionately poor women, women of color, and rural women. The Tennessee legislature has a responsibility to provide health care to women struggling with addiction and keep families intact while they go through treatment,” Cherisse Scott, founder and CEO of SisterReach, said in a press release urging lawmakers to let the law sunset as scheduled.
Amnesty International has gotten involved as well, reinforcing the well-supported claim that jailing and surveilling people while they’re pregnant is a massive invasion of privacy.
In a press release, Amnesty International policy analyst Carrie Eisert said:
“Women’s human rights are at stake when going to seek health care results in the threat of criminal sanctions. International human rights experts have expressed concern that punitive policies deter people who use drugs from seeking health care for fear that their confidential health information will be shared with the authorities. This is exactly what we have seen on the ground. When health-care providers become tied up in law enforcement, there is a chilling effect on pregnant women’s ability to access their rights.”
The entanglement of health care and law enforcement highlights an important distinction between intention of the law — purportedly to provide care for pregnant people as well as the potential children they’re carrying — and its usage. As RH Reality Check senior legal analyst Imani Gandy explained two years ago,as we began to see a boom in “reinterpretation” (to use a generous term) of related provisions, there is a proportionate justice application.
“Many such feticide laws are not, as drafted, incompatible with a woman’s choice to terminate a pregnancy,” Gandy wrote. “Indeed, the majority of states that have passed feticide laws expressly exempt abortion and do not punish a pregnant woman’s actions. As such, these laws have, in the past, been welcomed by pro-choice activists who view them as consistent with protecting a mother’s relationship with a wanted pregnancy.”
The punishment of pregnant people comes into play when overzealous, often ideologically-driven prosecutors and attorneys general use fetal assault/harm laws to advance a “pro-life” agenda. The “personhood” movement — which goes back to pre-Roe v. Wade days — has been pushing fetal homicide and related laws successfully since the early 1980s. Minnesota and North Dakota were the first states to make “fetal homicide” law in 1986; they’ve been sneaking it into benignly-worded amendments of bills and strategically supporting legal action creating rights for the “unborn” through precedent ever since. Once Congress passed the Unborn Victims of Violence Act in 2004, making it a crime to harm or kill a fetus during an act of violence against the mother, more overtly worded bills popped up in state houses around the country.
Some headway has been made recently to free wrongly imprisoned people and attempt to overturn provisions, hopefully creating precedent for challenging additional laws around the country.
In Arkansas, Melissa McCann-Arms recently won a case at the state Supreme Court to overturn a conviction and 20-year sentence under the “Introduction of controlled substance into body of another person” subsection of the state’s assault and battery penal code. Despite the unequivocal ruling that, according to local reporting, included a directive to the attorney general that “state law does not criminalize the passive bodily processes that result in a mother’s use of a drug entering her unborn child’s system,” the spokesperson for AG Leslie Rutledge took this as an instruction to seek additional legislation from the General Assembly. Arkansas has several TRAP laws already on the books, and the overwhelming Republican majority — 24-11 in the Senate and 64-36 (with one independent) in the House — makes the climate favorable to the passage of new pregnancy criminalization bills; this is a space to keep an eye on going forward.
In Wisconsin, the fight against the state’s “cocaine mom law” is proceeding thanks to a ruling from a federal district court judge. According to National Advocates for Pregnant Women (NAPW), the law passed in 1997 and “allows the state to detain pregnant women, at any stage of pregnancy, if they use or admit to past use of alcohol or drugs.” That’s quite a low bar — one that has resulted in the surveillance and investigation of more than 3,000 women in Wisconsin.
Alicia Beltran is one of those women.
Beltran discovered she was pregnant in 2012 while taking Suboxone supplied by a friend to help wean her off of painkillers. She sought prenatal care at a clinic and was honest with the physician’s assistant who recommended she obtain her own Suboxone prescription. After Beltran declined, a social worker visited her home and insisted on the medication. Again, she declined. Two days later, she was arrested at her home, taken to a hospital, and examined by a doctor who declared both her and the pregnancy healthy. Though she was deemed not to need in-patient or any other drug-related treatment, she was taken to jail and held until a court appearance where medically unnecessary inpatient drug treatment was ordered.
Thanks to action taken by NAPW, the county dropped its action against Beltran and her lawsuit was subsequently dismissed as moot since she was no longer facing legal consequences.
Two years after Beltran’s ordeal, Tamara Loertscher was jailed and denied medical attention — including three days in solitary confinement with nothing but a roll of toilet paper—simply for admitting to past drug use when she sought prenatal care. Her full story — reported on in detail at the Atlantic — is something out of a dystopian novel. She filed suit in December of 2014, just weeks before her healthy baby boy was born, not fully satisfied when the charges of “unborn child abuse” were dropped. She and the advocacy groups assisting with the suit to overturn the law don’t want to see others subjected to the same mistreatment.
“As shocking as Beltran was, the Loertscher case is more so, and more revealing of how dangerous this law is to pregnant women and their unborn children,” Lynn Paltrow, executive director of NAPW, told the Milwaukee Journal Sentinel.
With these stories becoming alarmingly common, Healthy and Free TN organized “Pregnancy, Drug Use, and The Law: Creating Fair and Effective Public Policies in Tennessee.” The symposium attended by more than 250 participants from around the country addressed human and civil rights, bodily autonomy, current available treatment options for pregnant people, recommendations from leading medical professionals, and the impact of the fetal assault law on people’s lives. The summary of the lessons from the conference include:
- The law is not preventing or addressing harm to infants and is not being consistently or fairly applied across the state.
- The law is having a negative impact on women and families.
- The criminal justice system is not an effective vehicle to reduce NAS rates or to help pregnant people access appropriate substance use disorder treatment.
- Research supports an integrated approach of treatment and support for healthier women and babies.
Their findings are straightforward, supported by research and scientific data, and laid out in plain language by experts from multiple disciplines and backgrounds; to anyone committed to public service, the path forward from here should be clear.
Healthy and Free TN and the other advocacy organizations determined to see the fetal assault law sunset this summer are hoping one or more of these lessons, and the other evidence that the law does far more harm than good, will sway the members of the House Criminal Justice Subcommittee. The best hope they have of keeping the law from becoming permanent is to see it fail there.
“Addiction is a public health issue — a woman should never find herself facing prosecution because of a health condition during pregnancy,” said Glass. “Lawmakers should oppose House Bill 1660, let the fetal assault law sunset, and create fair and effective policies that actually supports the health of women and their families.”