Lawmakers Consider Jailing Mothers of Babies Born Drug-Addicted

Tennessee reportedly has a growing problem with babies born addicted to drugs. The General Assembly is looking at encouraging mothers to receive treatment by way of threatening them with incarceration.

As of Oct. 26, 703 babies with “neonatal abstinence syndrome,” or babies born addicted to drugs, had been delivered in Tennessee in 2013 — a projected 33 percent increase over previous years. The state could see 800 drug-addicted babies born by the end of 2013 if the trend continues, Tennessee Department of Health Commissioner John Dreyzehner said.

“This is a preventable condition that can be largely eliminated; preventing addiction, thoughtful treatment and preventing unintended pregnancy are the most productive conversations we can have right now,” Dreyzehner said in a press release from Oct. 7.*

Dreyzehner said around 41 percent of the mothers were using prescription drugs prescribed to them by a physician and 33 percent used drugs from illegal sources.

Expecting mothers who use illegal drugs may become the subject to criminal penalties as part of a renewed push to address the issue in the Tennessee General Assembly next year.

The judiciary committee is considering Senate Bill 1391 sponsored by Reginald Tate, D-Memphis, which threatens women with prosecution if they “illegally (take) a narcotic drug while pregnant and the child is born addicted, is harmed, or dies because of the drug.”

The bill passed unanimously in the state House but stalled in the Senate and was sent to the judiciary committee for study.

The intent of the bill, said Shelby County Attorney General Amy Weirich, is to wield a “velvet hammer of justice” against pregnant women addicted to illegal drugs. She used the phrase describe the state’s drug court system.

“The focus of this legislation is to protect babies being born addicted to drugs. We are not talking about going after women who show up at their OB/GYN with a positive drug screen,” Weirich said.

She also emphasized the proposed law would only apply to illegal drugs, not prescription pain medications. The legislation could be expanded in the future to include alcohol abuse and prescription drug abuse, she said.

However, others, like Cathy Waterbury, the executive director of Covington-based Confidential Care for Women, a Christian-oriented pregnancy support center, are concerned that threatening women with criminal penalties could encourage drug-addicted women to seek abortions.

“If a woman has the option to kill her unborn child and continue her drug use, what is she going to choose?” Waterbury told the judiciary committee. “She is going to choose killing that unborn child.”

A woman who might not otherwise consider terminating her pregnancy may find herself doing so if threatened with the prospect of criminal charges if she gives birth to a drug dependent baby, Waterbury said. Members of the committee echoed her concerns in their questioning of Weirich, asking if the threat of prosecution would be enough to encourage an increase in abortions.

Weirich maintained that the intent of the legislation she advocates is not to put women in jail but to get them into drug rehabilitation programs through the state’s drug courts, which focus on recovery rather than punishment — although punishment is still threatened for those who don’t successfully abstain from drugs. Advocates of the system argue that drug courts reduce incarceration and recidivism rates.

Shelby County was using the drug court approach to rehabilitate mothers to prevent future drug-addicted babies, but a February attorney general’s opinion said state law doesn’t allow for women to face either criminal or civil liability in such cases. The AG issued his opinion after state Sen. Randy McNally, R-Oak Ridge, asked for clarification on whether state law can hold the mother or other individuals accountable for babies born with narcotic drug addiction or with birth defects.

This legislation isn’t the General Assembly’s first run trying to reduce drug abuse among pregnant women.

Last session the Tennessee General Assembly passed the Safe Harbor Act of 2013, which took effect in May. The law now requires doctors who determine an expecting mother is endangering her fetus through abuse of prescription drugs to “encourage counseling, drug abuse or drug dependence treatment and other assistance to the patient.”

The Safe Harbor Act also keeps the Department of Children’s Services from attempting to terminate the mother’s parental rights as long as she seeks treatment and complies with a substance abuse program throughout the remainder of her pregnancy. The Act also prioritizes public funding of funding of treatment centers that serve pharmaceutical-abusing pregnant woman.

The Senate’s sponsor, Harriman Republican Ken Yager, said the law “gives women who are addicted a chance to keep their baby by undergoing treatment … and hopefully, discourages women from seeking other alternatives such as terminating the pregnancy.”

Yager told members of the Senate Judiciary Committee Tuesday that 60 percent of mothers on TennCare who gave birth to babies with neonatal abstinence syndrome had been prescribed the medication by a doctor.

“That statistic really does validate this bill,” Yager said. “It gives women a chance to save that baby and their family.”

*Correction: An earlier version of this story reported that Tennessee Health Commissioner John Dreyzehner delivered remarks before the Senate Education Committee Tuesday. Dreyzehner’s comments in this story came from press release dated Oct. 7 and can be found here.