A petition is circulating online asking Gov. Bill Haslam to veto SB 1391. The bill would modify the Tennessee criminal code to allow for criminal assault charges to be brought against women who use illegal narcotics while pregnant, should their drug use lead to harm or death for the fetus or child. These charges carry a penalty of up to 15 years in prison. But the bill is so badly written, it could affect all pregnant women in Tennessee, whether or not they use drugs, should something go wrong during their pregnancy. In effect, SB 1391 threatens to criminalize pregnancy in Tennessee.
Policy analysts and political commentators across the world have voiced their concerns with SB 1391, arguing that it could have far-reaching consequences (Reality Check, The Guardian, The New York Times, The Daily Beast, and NPR). Even some pro-life groups recognize that SB 1391 could incentivize abortions for women who use drugs, since women risk up to 15 years in prison by continuing their pregnancy, especially if they are unable to access drug treatment programs (All Our Lives).
If we really want to support the flourishing of children in Tennessee, then we need to move beyond the pro-life/pro-choice framework to seek reproductive justice for everyone, based on “the right to have children, not have children, and to parent the children we have in safe and healthy environments” (SisterSong). For example, rather than punishing women who use illegal drugs while pregnant, we should be extending the Safe Harbor Act to support women who use either prescription drugs or non-prescription drugs to get the treatment they need, and to stay clean for the sake of their families and themselves.
And we should be investing in drug treatment centers that are specially designed to help pregnant drug-users, no matter what sort of drugs they use. According to The Guardian, "There are 177 addiction treatment centers in TN, but only two offer prenatal care on site. Only 19 provide any services for pregnant women." This double jeopardy of being ordered to seek treatment in a situation where there is no meaningful access to treatment, then being punished for “failing” to get help, is a decades-old problem that has been analyzed in detail by engaged scholars such as Dorothy Roberts and Rachel Roth. It also brings to mind Malcolm X’s critique of “a society that will crush people, and then penalize them for not being able to stand up under the weight.”
Let’s look at the SB 1391 in detail, and in the context of existing law. The current Tennessee criminal code already allows for assault charges to be brought against a third party who assaults a fetus (presumably by assaulting a pregnant woman). Tenn. Code Ann. § 39-13-107 is entitled “Fetus as victim.” It falls under the part of the criminal code dealing with assaultive offenses. Subsection a reads:
(a) For the purposes of this part [of the criminal code], "another," "individuals," and "another person" include a human embryo or fetus at any stage of gestation in utero, when any such term refers to the victim of any act made criminal by this part.
So any criminal assault charge (be it assault, aggravated assault, reckless endangerment, and vehicular assault) can be brought against someone who commits these acts against a fetus or embryo. But another subsection in the code explicitly excludes pregnant women and health care professionals from liability for assault against a fetus:
(c) Nothing in subsection (a) shall apply to any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant, or to any lawful medical or surgical procedure to which a pregnant woman consents, performed by a health care professional who is licensed to perform such procedure.
HISTORY: Acts 1989, ch. 591, § 1; 2011, ch. 408, § 1; 2012, ch. 1006, §§ 3, 4.
This formulation is clearly meant to protect women and medical personnel from being charged with assault if they seek or deliver an abortion, or if something goes wrong in the pregnancy, resulting in harm or death to the fetus. This subsection is actually a watered-down version of the 1989 criminal code (which was presumably when category of fetus-as-victim was introduced into Tennessee law, as it was in many other states in the 1980s and 90s. Back then, this subsection of the criminal code was called “Viable fetus as victim” rather than “Fetus as victim,” and it explicitly defended the woman’s right to have a legal abortion:
Tenn. Code Ann. § 39-13-107. Viable fetus as victim
(c) It is the legislative intent that this section shall in no way affect abortion, which is legal in Tennessee. This section shall in no way apply to acts that are committed pursuant to usual and customary standards of medical practice during diagnostic or therapeutic treatment.
[Acts 1989, ch. 591, § 1.]
The 2013 revision of this subsection makes the word “abortion” disappear, substituting instead a reference to “any lawful medical or surgical procedure to which a pregnant woman consents, performed by a health care professional who is licensed to perform such procedure.”
SB 1391 would keep this formulation, but add a further restriction on the protection of pregnant women from criminal prosecution for assaulting their own fetus. It would add the word “lawful” to subsection (c), resulting in the following formulation:
(c) Nothing in subsection (a) [which allows for assault charges to be brought against persons who assault a fetus] shall apply to any lawful act or lawful omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant....
This may seem like a minor revision, but it could have drastic consequences for women in Tennessee, and for women across the US if other states adopt similar legislation. Imagine the following scenario: A pregnant sex worker is assaulted by her john. Under the 2013 code, as well as the 1989 code, he could be charged with 2 counts of assault: one against the woman, and another against the fetus. But if SB 1391 were signed into law, what would protect the woman herself from being charged with assault, or at least with reckless endangerment, on the grounds that she engaged in unlawful acts while pregnant, which exposed her fetus to the risk of harm or death?
Furthermore: What counts as an “unlawful” act in a state where cities and towns are allowed to criminalize the survival strategies of poor and homeless people, such as sleeping in public? Or where ordinances against loitering, trespassing, and so forth, are selectively enforced against poor people and/or people of color? If a homeless woman’s pregnancy ends in a miscarriage, or her child is born with some form of impairment, could she be charged with assault, since she engaged in unlawful acts while pregnant?
And what counts as a lawful or unlawful omission? If a woman is on parole or probation, and she misses a parole meeting while pregnant, then has a miscarriage or the child is born impaired (for whatever reason), then could she be charged with assault? What if she is in a car accident and is found to have unlawfully omitted the wearing of a seatbelt? Could she be charged with assault against her fetus?
One may object that such scenarios are extreme, and they fall outside of the intended or imagined scope of the law. But laws have all kinds of unintended consequences, especially in a legal system where prosecutors have almost unchecked power to bring any plausible charge against a defendant, either in order to force a plea bargain or to punish a person to the full extent of the law. Those who are the most socially marginalized – poor people, people of color, people with disabilities, and so forth – are also the most likely to charged and punished more harshly than others who already enjoy social and legal protection. This is why we must put them at the center of our analysis when we examine policies and legislation.
The implications of this potential revision to the Tennessee criminal code already give us cause for concern. But SB 1391 doesn’t stop there. It also proposes to add a new subdividsion to the criminal code. Section (c) of SB 1391 reads:
Notwithstanding subdivision (c)(1) [this is the section we just looked at – the one which offers limited protection to pregnant women from charges of assault, as long as they have not engaged in any unlawful acts or omissions that are judged to have caused harm or death to the fetus], nothing in this section shall preclude prosecution of a woman for assault under § 39-13-101 for the illegal use of a narcotic drug, as defined in § 39-17-402, while pregnant, if her child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.
So, in plain language: If a woman uses illegal drugs while pregnant, and her fetus is harmed, “addicted,” or killed as a result of this drug use, she could face criminal assault charges. No mention is made of the grounds on which a causal relation between drug use and harm is to be determined, but again, we can be sure that the most socially-marginalized women would be most harshly affected by this subdivision of the bill.
Contrast this with the Safe Harbor Act of 2013. The Safe Harbor Act is one of the more progressive pieces of legislation to come out of Tennessee in recent years. According to Reality Check, the act “created incentives to get pregnant women who use drugs into treatment programs, and guaranteed that so long as the women continued their treatment, their newborns would not be taken away by the Department of Children’s Services solely because of their drug use.” The Safe Harbor Act was passed in response to a dramatic rise in cases of Neonatal Abstinence Syndrome, or NAS, in Tennessee (TN Health). NAS refers to a cluster of symptoms similar to withdrawal, which are observable in some newborn infants. According to Weaver, infants with NAS “look like Gerber babies but their whole mechanics are twisted, and they’ll never be the same.” But according to medical experts such as Dr. Kathy Hartke of the American College of Obstetricians and Gynecologists, the effects of NAS are temporary and reversible (Daily Beast).
In any case, the Safe Harbor Act only applies to women who abuse prescription drugs, and not to women who use illegal drugs (TNMed). The main sponsor of Safe Harbor, Sen. Ken Yager (R-Harriman) – who, incidentally, is the same person who sponsored a bill to bring back the electric chair, which is also sitting on the Governor’s desk – explained to reporters that he restricted the scope of the bill in order to target “a small population. A law that is too broad, he said, could make so many pregnant mothers eligible that preventive treatment costs would sink the effort altogether” (Tennessean). God forbid that too many pregnant women should get the treatment they need, or that the state should support their efforts to get clean, both for their own sake and for the sake of their fetus!
The restricted scope of the Safe Harbor Act introduces a biopolitical cut between those who must live (and reproduce) and those who may die (and/or be punished). The selective application of Safe Harbor is evident in the language used to describe the plight of pregnant women who abuse prescription drugs, as opposed to “illegal narcotics.” Tennessee Health Commissioner John Dreyzehner recognizes that, when it comes to prescription drug abuse, “We cannot arrest our way out of the problem” (Tennessean). Sen. Yager agrees: “We’ve got to give people an incentive to get cleaned up” (Tennessean). And yet, the state also recognizes that solving problems costs money, and it worries about wasting money on those whose lives seem unlikely to contribute to the state’s overall health and prosperity. So it mobilizes the language of care and punishment to produce and reproduce a division between the deserving and the undeserving, the innocent and the guilty, the pill-poppers and the “hardcore addicts.” It offers Safe Harbor, positive incentives, and treatment to the former, and uses the hammer (velvet or otherwise) of criminalization, arrest, incarceration, and possible termination of parental rights on the latter.
Wally Kirby, executive director of the Tennessee District Attorneys General Conference, explains the rationale for excluding illegal drug users from access to safe harbor from the perspective of law enforcement: “We don’t have any problem with these mothers trying to get treatment and trying to get help, but if we have a child that’s damaged because of this drug injection, or stillborn, we need the ability to prosecute these ladies” (Tennessean). Whether or not Kirby intends and anticipates this, the “ladies” most likely to be the prosecuted under the new law are women of color and/or poor women, who are already socially marginalized and exposed to disproportionate punishment under the law. To make matters worse, it’s not even clear that Tennessee has the infrastructure to allow women to comply with the order to undertake a drug treatment program to avoid facing criminal charges for the assault of their fetus.
In any case, there is nothing in SB 1391 that even encourages women who use illegal drugs to get treatment — that "carrot" is reserved for women who abuse prescription drugs (under the Safe Harbor Act). If we really want children to flourish in Tennessee, then we will invest in drug treatment centers that are specially designed to help pregnant drug-users, no matter who they are or what sort of drugs they use.