published Monday, April 28th, 2014

Drug debate: Will punishing women who take drugs while pregnant help, hurt or both?

Poll
Should pregnant women who use illegal drugs be charged?

No one wants to see babies born dependent on drugs. It’s easy for lawmakers, medical groups and women’s rights advocates to agree on that.

But they don’t always agree on how to curb the numbers of such births. Now the nation’s eyes are on Tennessee, where lawmakers passed a bill that allows pregnant women to be criminally charged if drug use harms their babies.

The bill says a pregnant woman may be prosecuted for an “assaultive offense … if her child is born addicted … or harmed by the narcotic drug.” She can be charged with homicide if her baby dies because of her drug use.

If Gov. Bill Haslam signs the bill or allows it to become law without his signature, it will be the first law of its kind in the country.

“Tennessee would become an extreme outlier, becoming the first state to criminalize pregnancy outcomes,” said Farah Diaz-Tello, a staff attorney with the National Advocates for Pregnant Women, a New York-based organization.

Over the last two weeks, that organization and other medical groups and women’s rights advocates across the country have urged Haslam to veto the bill.

The bill’s sponsors argue that strong punishment will deter drug use during pregnancy. The legislation sends a clear message about defending “the most vulnerable.”

“Nothing is more cruel than to have a baby being addicted to drugs when it’s born,” said Sen. Todd Gardenhire, R-Chattanooga, a co-sponsor of the bill. “This is meant to protect the unborn.”

But others have said such a law could have the opposite effect.

They believe mothers worried about criminal charges are more likely to avoid addiction treatment or prenatal care, and unlikely to seek treatment for infants suffering from the symptoms of drug dependency. Some may leave the state or seek abortions to avoid being charged, they argue.

Over the years, many other states have considered similar legislation, Diaz-Tello said, “but the legislators listened to medical experts who say that criminalizing pregnancy outcomes is dangerous for the babies and moms.”

She also is concerned that the law is unclear about what kinds of actions can be prosecuted and what penalties women may face. The law’s constitutionality is questionable, she added, along with the fact that it targets only women. Fathers would not be held responsible for any drug-related harm to babies.

On Friday, advocates delivered a petition against the bill signed by 10,500 people to Haslam’s office in Nashville.

Other groups decrying the bill include the National Perinatal Association, the ACLU and the American College of Obstetricians and Gynecologists, which says “drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus.”

Tennessee legislators say the firestorm about the bill really only ignited after it was passed by the House and Senate.

“The only calls I have gotten about it were positive,” Gardenhire said.

The deadline is Tuesday for Haslam to sign or veto the bill, said his spokesman, David Smith. If he takes no action, the bill will automatically become law.

“The governor collects as much information as possible before coming to a decision,” Smith said Friday.

If the bill becomes law, the National Advocates for Pregnant Women plans to challenge its constitutionality, Diaz-Tello said.

•••

In 2013, Tennessee became the first state to require medical centers to report the births of drug-dependent babies.

Last year 921 Tennessee babies were born with what’s called neonatal abstinence syndrome. Four months into 2014, the state has recorded 253 such births, according to the Tennessee Department of Health.

On the front lines of the battle is Dr. Gary Bell, a neonatologist in Erlanger hospital’s Neonatal Intensive Care Unit and Southeast Tennessee’s leader for a statewide study of newborn drug dependency.

Watching tiny newborns in the throes of withdrawal — wracked with seizures, vomiting, diarrhea and eating difficulties — Bell sympathizes with the desire for heavy intervention. But he also says situations aren’t always black and white, and that treatment and monitoring of pregnant women are much better tactics in the long run than criminal charges.

“I want something to be done,” said Bell. “But I don’t want the mothers to be treated like criminals.”

A pregnant woman going through withdrawal is at serious risk for losing her baby, said Bell. Pregnant, addicted mothers must often be put on addiction therapy drugs like methadone or buprenorphine to help control symptoms.

And there is the question of separating the baby from the addicted mother.

Bell said some drug-dependent babies should be placed with another caregiver or foster family. But in most cases, it is best for the baby to remain with the mother, he said.

That seemed to be lawmakers’ belief last year when they passed the Safe Harbor Act, which allowed pregnant women to move to the head of the line for drug treatment and promised that compliance with the program would guarantee their parental rights.

“It really made Tennessee one of the best-practice states in what it was trying to do with these women,” said Diaz-Tello. “Unfortunately, this [latest] proposal undercuts the progress the state has made there.”

Sponsors have argued that the new law does encourage treatment.

The bill says a woman won’t be charged if she was “actively enrolled in an addiction recovery program before the child is born, remained in the program after delivery, and successfully completed the program.”

But opponents say that stipulation is too vague and fails to account for the limitations of addiction treatment. Some treatments, like methadone, continue indefinitely.

Many rural areas in the state don’t have treatment centers, and nothing in the new bill expands treatment services. Just two of Tennessee’s 177 treatment centers offer prenatal care on site, and only a handful provide addiction care for pregnant women, said Cherisse Scott, the chief executive of SisterReach, a Memphis-based reproductive rights group.

Scott’s group argues that the law will disproportionately affect poor, minority and rural mothers.

Gardenhire said those advocating for the mothers are choosing to support addicts over babies.

“A mother who is pregnant and taking drugs is putting her habit over the life and welfare of the child,” said Gardenhire. “Most mothers addicted to drugs aren’t thinking about children — they’re thinking about getting their next fix.”

Scott said that argument oversimplifies addiction as a moral issue and ignores medical and biological factors.

“This is a medical condition,” said Scott, who said her own father has struggled with lifelong addiction.

“Nobody wakes up and says, ‘I want to be a heroin addict.’ We can’t assume that someone who has an addiction doesn’t love their child. If she can get back on her feet, she is in a far better position to be a good parent and an asset to her community.”

Contact staff writer Kate Harrison at kharrison @timesfreepress.com or 423-757-6673.

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