The XX Factor

Tennessee Legislature Passes Bill Criminalizing Pregnancy

History shows that prosecutors are more willing to blame drug use for a birth defect or stillbirth than doctors are.

Prosecutors have become quite fond of stretching the reach of child abuse and even murder laws to punish pregnant women for failing to deliver live or healthy babies, usually because those women used drugs during pregnancy. (Though not always.) Often the fact that the laws being used to prosecute are clearly not meant to address what women do to their own bodies while pregnant causes the cases to collapse. For instance, a recent Mississippi case I wrote about involving a mother charged with murder after her baby was stillborn was tossed out by a judge who ruled that the law wasn’t meant to apply to situations such as hers. 

Well, the Tennessee legislature decided to fix this problem by passing a bill through both houses that would give prosecutors broad rights to press abuse charges against women who use illegal drugs during pregnancy and then give birth to unhealthy or stillborn babies. According to RH Reality Check, if the governor of Tennessee signs the bill, it will be the first law like it in the country. The law is a reaction to the passage of the Safe Harbor Act last year, an actually good bill that allows pregnant women with drug problems to seek treatment with the knowledge that Child Protective Services will not take their babies away because of it. (The women do have to stick to the program to keep that assurance.) But law enforcement insisted on retaining the right to throw a woman in jail—even if she has stuck with the treatment program—if the baby is born with problems and they decide that it must have been the drugs that did it.

I say “they decide” because even though the bill ostensibly limits prosecution to cases where the baby is “born addicted to or harmed by the narcotic drug” or “if her child dies as a result of her illegal use of a narcotic drug,” history shows that prosecutors are more eager to say that drug use caused a birth defect or stillbirth than doctors are. This was evident in the Mississippi case, where the prosecutor and the state medical examiner aggressively pushed the theory that the mother’s cocaine use caused the stillbirth, even though the baby was born with an umbilical cord wrapped around her neck. It’s hard to imagine any other cases where assault or murder charges are brought up against someone when it’s an open question if the person’s actions, no matter how immoral or reckless, actually caused the injury or death in question. 

Notably, the law only addresses illegal drug use, even though one drug we know for certain causes birth defects, alcohol, is perfectly legal. 

If this law passes, it will severely undermine the intention of the Safe Harbor Act. If women avoid seeking treatment for drug abuse during pregnancy for fear of having their babies taken from them, then they are definitely going to be afraid to do it if it means risking jail based on something that may be out of their control—the circumstances of childbirth.