In this undated photo released by Brittany Hudson, Hudson holds her 16-month-old daughter Braylee, in Tenn. Hudson, who is a recovering painkiller addict, gave birth to the girl in the backseat of a car on the side of a road. The girl was born dependent on drugs because of her mothers' drug abuse while pregnant. Hudson says the child, who is now 17 months old, is now healthy. (Brittany Hudson via Brittany Hudson)Hudson's dilemma, doctors say, was one of many unintended consequences of the Tennessee Legislature's decision in 2014 to become the first and only state with an explicit criminal offense for these addicted mothers.
The law was meant to deter drug abuse by threatening mothers with up to a year behind bars, while allowing them to avoid jail and have their assault convictions removed if they got drug treatment. It was also an experiment with a "sunset" clause, meaning it will expire this July because the law's supporters lacked the votes to extend it.
The problem of drug use and pregnancy is worsening nationwide, with a drug-dependent baby born every 25 minutes in the U.S. at a cost of $1.5 billion in additional health care, according to a Vanderbilt study. And states can't just arrest their way out of it, said Dr. Stephen Patrick, a neonatologist who co-authored the study.
But doctors who treat addicts say Tennessee's experiment backfired, encouraging women to avoid prenatal care and exposing their babies to more risks while failing to reduce the astronomical costs of treating newborns who suffer from drug withdrawal - what doctors call neonatal abstinence syndrome, or NAS.
"As soon as the law was passed, very quickly I started to see women with drug addictions seeking prenatal care later and later in their pregnancies and seeking treatment for their addiction later in pregnancy," said Dr. Jessica Young, who runs an outpatient program for pregnant addicts at Vanderbilt University Medical Center.
"And what they would tell me is that they would attempt to self-detox at home, attempt to stop at home without any treatment because they were afraid of what would happen if they admitted they had a problem," Young said.
The law was meant to help women get treatment and hold them accountable for child abuse, said its sponsor, Rep. Terri Lynn Weaver, a Republican who still believes it had a positive impact. She dismisses the evidence as anecdotal and says there isn't enough data to show women were avoiding treatment. She wonders what will happen now.
"Who is going to be the voice of these babies?" she said.
It's not clear how many women have been arrested, in large part because the law created no new reporting obligations on the part of doctors, police or prosecutors, nor did it fund efforts to study the impact. Neither did the law provide for expanding the programs needed to keep these mothers in treatment and out of jail.
Tennessee does track its number of afflicted newborns, which has not decreased. Roughly 1,000 babies suffering from drug dependence have been born every year since 2013, when the state began requiring all hospitals to report them to the health department.
In the end, only two-thirds of Tennessee's district attorneys responded to state's Department of Safety and Homeland Security's survey, reporting 97 prosecutions initiated under the law as of last fall. This means prosecutors responding to the survey may have initiated cases against less than a tenth of these women, on average. In the Memphis area, that's because prosecutors invoked the law very selectively, only pursuing cases when the babies tested positive and the mothers refused treatment, said Larry Buser, a spokesman for Shelby County District Attorney Amy Weirich.
Farah Diaz-Tello, a staff attorney with Advocates for Pregnant Women, said her organization received numerous reports of women avoiding treatment and prenatal care for fear of arrest.
"We've been confident from the beginning that good sense and good medical practice would prevail here, and I hope that this will send a message to other states that are contemplating similar laws that this is the wrong way," she said.
Other states also arrest women who abuse drugs during pregnancy on charges such as child endangerment or assault, and those prosecutions are rising. Oklahoma and North Carolina attempted to pass laws similar to Tennessee's. Alabama and South Carolina rely on court precedents to prosecute women whose newborns suffer from opiate withdrawal.
Nationwide, there have been about 1,200 arrests of pregnant women since 1973, most of it for drug use, according to a study of media accounts by the Advocates for Pregnant Woman. The majority were arrested in the last decade - 800 since 2005, and about 500 of those were in Alabama.
The New York-based organization, however, says the real number is probably far greater.
Weaning a pregnant addict and her baby off drugs can be both costly and difficult, since the science on this is relatively new. Many treatment centers are wary of liability questions surrounding the effect on the child, and the law failed to do much to create more places pregnant addicts can turn to.
"It punished women for not finding treatment when there wasn't treatment to be found," said Mary Linden Salter, executive director of the Tennessee Association of Alcohol, Drug and other Addiction Services.
Hudson said she had avoided going to the doctor in hopes of keeping her family together. As she went into labor, she rushed to someone she was told was a midwife. Then she gave birth in the back of the car, and the woman turned out to lack that training.
Her newborn was taken to the neonatal intensive care unit at the University of Tennessee Medical Center, where opiates were found in her blood. Hudson became one of the first women to be punished under the law, and the state put her baby in protective custody.
Hudson didn't stop taking painkillers until she had spent two weeks behind bars. She had sought help from three different treatment centers after she went to jail, but none would accept payment from TennCare, the state's Medicaid program. After time in a halfway house, she got a job helping other addicts.
"I have two kids, and with my first one I went to every (obstetrician) appointment, and this law was not on the books; so I can safely say that the reason I did not get OB care was because I was scared," said Hudson. "I know from other women as well, because I work in a treatment center, that people are not going to their OBs."
Hudson is now clean and her 17-month-old girl is healthy. Many authorities would credit the threat of jail for making that possible.
But Hudson says her sobriety wasn't achieved because of this law. She believes pregnant addicts desperately want treatment, and should not be demonized.
"To help the baby, we have to help the mom," she said, "because that's a win when the baby is born drug free."