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The Tennessee Law: Children's Safety or Mothers' Punishment?

The Tennessee Law: Children's Safety or Mothers' Punishment?

September, 2014

This July, Tennessee became the first state to criminalize prenatal drug use. Under this new state legislation, women can be charged with a class-A misdemeanor for using drugs or alcohol during their pregnancies. The law is now at the center of a heated national debate, as supporters and opponents both defend their efforts to protect the safety of women and children. No matter which side you're on, the law's implications go far beyond the legal and medical communities, bringing up questions of ethics, privacy, and even gender equality.

Supporters emphasize safety of children

Among those who pushed for the law's passage, the most immediate and significant concern was for unborn babies' health. The debate might be a national one, but the problem is local for the lawmakers who passed it. Tennessee House Representative Mike Carter told Legal Talk Network that neonatal abstinence syndrome (NAS) is three times more common in the United States than it was ten years ago. However, it's fifteen times more common in Tennessee, prompting the state to consider this solution.

Others stop short of claiming that the law will be preventative, instead comparing it to laws that treat a pregnant woman's murder as two separate homicides. They argue that this law simply broadens the scope of other child abuse laws, because it would be decidedly illegal for a mother to give her toddler drugs. Under this reasoning, the new law merely continues a legal precedent for crimes that victimize unborn children.

Children born with NAS are physically dependent on the substances their mothers used. Medical intervention is usually required to alleviate the effects of withdrawal, and the Tennessee Medical Association suggests that holding mothers accountable will decrease the likelihood of this painful condition. Politicians also worked to incorporate a rehabilitative aspect into it, hoping the arrest and subsequent medical attention would encourage women to get help and abstain from substances in the future.

Opponents push for treatment, not punishment

Detractors vehemently disagree with the law's supporters, warning that the threat of jail time won't actually decrease the rate of prenatal drug use. In fact, many fear that it could have the opposite effect. Opponents include scientific, medical, and legal organizations such as the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, the American Medical Association, and even the American Civil Liberties Union (ACLU).

While drug possession is typically treated as a non-violent offense, this law widens the scope to classify prenatal drug use as a form of assault or child abuse. Treating substance possession as a criminal act has always been controversial, and opponents argue it only increases the effects of drugs on families and communities. Tennessee's law goes a step further than most laws, punishing use rather than possession and immediately separating mothers from newborns. Health care professionals emphasize the importance of this legal distinction, warning that people are less likely to seek treatment if they fear an arrest. If this is accurate, pregnant women may also be less likely to seek treatment.

Others decry the sexist nature of the law. Because it only affects the female reproductive system, some legal experts have expressed concerns that it infringes on women's constitutional rights to privacy and equal legal protection. The law's language makes this more difficult to assess. "Harm" and "treatment", for example, can be interpreted to mean different things, making arrests subjective.

When the law expires in 2016, experts will have two years' worth of data to analyze. Time will tell which concerns were valid, and whether it has had a positive or negative effect on the women and children of Tennessee.

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