Usually, when a state passes a bill meant to try to change a societal trend, they give that bill a few years to see if it is working or not before readdressing it. Tennessee, however, is far too impatient to do so. Instead, the state legislature is in the process of passing a law that will charge a pregnant person with criminal assault for using drugs while pregnant, following the tide of other states that have created new charges specifically and solely focused on those who are carrying a pregnancy to term.
It was only two years ago that the legislature voted to remove criminal charges for a pregnant person found to be using drugs, citing hopes that without fear of jail those people would be more likely both to seek treatment and prenatal care. Now, it could once again be a crime, as the senate has passed SB 1391, allowing misdemeanor assault charges against mothers in cases in which babies are born drug-dependent.
Besides the harm it can cause to both babies who may be denied care because of a mother’s fear of arrest and the pregnant person worried about criminal penalties, even anti-abortion activists show concern about the implications of the bill, which some worry could make pregnant people seek out abortions rather than give birth.
None of this appears to concern bill author, Republican Terry Lynn Weaver, who told two separate news outlets, “This piece of legislation is an intervention. Do you want help for yourself, and do you want help for the baby who is inside your womb, or not?” and that, “It would just seem to me that any society that puts value on life, that these defenseless children deserve some protection.”
As reproductive rights writer Lauren Rankin notes over at Cosmo, however, that “protection” comes at a cost, and it’s a cost that will disproportionately affect pregnant people of color. Rankin reports that the bill’s sponsor testified it was only meant to deal with heroin and cocaine use. “If this bill is meant to address the epidemic of babies born with NAS, why is it only criminalizing certain kinds of drug users?” Rankin asked.
“Recent data from the Substance Abuse and Mental Health Services Administration shows that though black women have higher rates of illicit drug use, one in five white women actually smoke cigarettes during their pregnancy,” writes Rankin. “Older data from the National Institute on Drug Abuse indicates that despite higher rates of illicit drug use among black women, more white women use illicit drugs during pregnancy.”
Additional criminalization of drug use during pregnancy is rapidly expanding, from forcing women into rehab even if they say they are coping with their addiction on their own to seeking out a pregnant woman who left her newborn at the hospital after birth, because the newborn had drugs in its system. The dismissal of “depraved heart murder” charges for Rennie Gibbs is one positive story, but the prosecution’s vow to seek out manslaughter charges anyway to punish this woman for a “crime” that happened almost a decade ago and which hasn’t been adequately proven by autopsy shows that our society is obsessed with punishing a mother for any harm that comes to her child, regardless of how little evidence there is to support it.
But what if that sort of action didn’t stop at birth, but continued? We are seeing precedent. In South Carolina, a mother is being charged for “involuntary manslaughter and unlawful conduct toward a child,” after her child died of a morphine overdose. Allegedly, the crime was committed via breastfeeding, despite the fact that as one reporter remarks, the forensic investigation was cursory at best, and possibly completely negligent. “Her hair wasn’t tested either. Morphine is stable in hair for months, and hair analysis would have revealed whether Mrs Greene was taking more medication than had been prescribed. That test was also deemed unnecessary,” writes Steven Karch. “In short, no real forensic investigation was conducted, just an autopsy with no diagnostic findings. If no drugs had been detected, death would have been attributed to SIDS (sudden infant death syndrome or ‘cot death’).”
What all of these laws and cases underscore is that via our legislatures and our criminal system we are, in essence, seeking to punish women for not protecting their children, from egg stage to infant. First, criminalize bad mothering during pregnancy, next even after the infant is born. Where, exactly, will it stop?
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