Tennessee is the only state to consider drug abuse by pregnant women to be "assault." The law states that a woman may be prosecuted for assault if her child is born addicted or harmed by the drug and for homicide if the child dies from drug exposure. It is an affirmative defense to prosecution if the woman is actively enrolled in an addiction recovery program before the baby is born, remains in the program after delivery, and successfully completes the program.
The American Civil Liberties Union of Tennessee plans to challenge the law in court.
Courtesy Mr. John Russell/Vanderbilt University
Dr. Jessica Young
The Tennessee Medical Association opposed the law, but successfully pushed for amendments that would lessen the punitive damages against women, Dave Chaney, TMA director of communications, said in an interview. The medical association successfully lobbied to lower the charging level in the bill to a misdemeanor and helped secure a stipulation that women who enter a treatment program be punished only by a fine.
Various states pursue criminal charges against pregnant women who use narcotics. Eighteen states consider substance abuse during pregnancy to be "child abuse," and three other states consider substance abuse during pregnancy to be grounds for civil commitment, according to an August 2014 analysis by the Guttmacher Institute. Fifteen states require physicians to report suspected prenatal drug abuse to authorities, and four states require health providers to test for prenatal drug exposure if they suspect substance abuse.
Other states could soon follow in Tennessee’s footsteps, Elizabeth Nash, Guttmacher Institute state issues manager, said in an interview. "Legislatures see what’s happening in other states and decide whether it may be right for them."
Meanwhile, a newly proposed federal bill could assist states in addressing the issue of drug-addicted pregnant mothers and babies and drive more effective responses to the crisis. The Protecting Our Infants Act, introduced July 31 by Rep. Mitch McConnell (R-Ky.), aims to better identify and treat opioid use by pregnant women and neonatal abstinence syndrome (NAS) in newborns. The legislation is backed by ACOG.