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Legal Uncertainty, Political Disagreement Surrounds New Drug-Dependent Babies Law

The Tennessee House of Representatives sponsor of legislation targeting women for criminal prosecution who give birth to drug-dependent babies called the behavior of the first mother arrested under the new law “unconscionable.”

And Terri Lynn Weaver, R-Lancaster, told TNReport she’s certain the bill she guided to passage three months ago includes methamphetamine among the particular drugs she wants women brought up on assault charges for using if their newborns are found to have the substance in their blood. The initial case involves a 26-year-old Monroe County woman arrested for purportedly using meth just three or four days prior to her child’s birth.

“Meth is illegal,” Weaver told TNReport this week. She claims her legislation was intended to include all “illegal drugs.”

Under the terms of the new law, if a woman is “actively enrolled in an addiction recovery program before the child is born,” and successfully completes the program, she can use that as an “affirmative defense” to fight criminal charges against her, “regardless of whether the child was born addicted to or harmed by the narcotic drug.”

Meth an “Opiate”?

However, it is somewhat unclear as to whether the actual wording of the new law backs up an assumption that methamphetamine is covered under the law, which was sponsored in the Senate by Reginald Tate, a Memphis Democrat and chairman of the Shelby County Legislative Delegation.

Weaver’s comments herself on the floor of the Tennessee House back in April, when the bill was debated and ultimately passed, would seem to indicate that it does not.

The legislation that the General Assembly approved stipulates that women whose babies are found to have evidence of a “narcotic drug” in their systems are subject to prosecution. The law declares that the existing definition of “narcotic drug” in state law be used as the basis for prosecution.

Tennessee state law defines “narcotic drug” as opium, opiates, coca leaves or any compound, derivative or preparation of such substances. But while “opiate” is generally defined in medical or scientific terms as relating to or resembling opium or morphine — and that would include heroin —  the definition under Tennessee’s statute also alludes to any substance “being capable of conversion into a drug having addiction-forming or addiction-sustaining liability.”

Yet on the House floor back in April, Weaver declared repeatedly that her legislation “only deals with cocaine and heroin.” She never mentioned methamphetamine or any other banned substance.

Divisions in Both Parties

The Senate passed the legislation on a vote of 25-7 with no debate on April 7. The House passed it two days later, 64-30. Among those who voted against it in the Senate, all were Republicans — notably, Speaker Pro Tem Bo Watson of Hixon, Government Operations Chairman Mike Bell of Riceville, Stacey Campfield of Knoxville and Jim Summerville of Dickson — both of whom are in tough GOP primary fights — and Jim Tracy, who is challenging incumbent Republican Scott DesJarlais for his seat in the U.S. House of Representatives.

In the House, 19 votes were cast against the bill by Democrats and 11 by Republicans, including House Majority Leader Gerald McCormick of Chattanooga, Calendar and Rules Chairman Bill Dunn and Education Committee Chairman Harry Brooks, both of Knoxville.

The Republican speakers of both the House and the Senate, Nashville Rep. Beth Harwell and Lt. Gov. Ron Ramsey of Blountville, each voted in favor of the law.

Like the rest of the Senate Democratic Caucus, Thelma Harper of Nashville voted in favor of the law. And she’s being criticized for it by her primary-election opponent, former Tennessee Democratic Party communications director Brandon Puttbrese. “Nashville deserves a senator who will stand up for the women of Davidson County and who understands that jail is not a prescription for treating disease,” Puttbrese said in a press release in April urging Gov. Haslam to veto the legislation.

State Democratic Party executive director Roy Herron acknowledged back in May that addressing the problem of babies born harmed by drugs is “a terribly difficult issue.”

“There’s no question there are compelling needs to try to save children from these horrible additions, and there also doesn’t seem much question to me that there are terrible unintended consequences that possibly could happen,” Herron said.

Many Questions, More Debate Guaranteed 

During the House debate April 9, Rep. Sherry Jones, a Nashville Democrat, sparred with Weaver over whether the bill would require doctors to report women, and whether it could cause pregnant addicts to avoid necessary prenatal care.

Weaver argued that drug-abusing mothers aren’t worried about the health of their babies. “These ladies are not those who would consider prenatal care,” she said. “These are ladies who are strung out on heroin and cocaine, and their only next decision is how to get their next fix.”

Weaver also got pushback from fellow Republican Dunn, who said a potential consequence of the legislation might be to encourage addicted mothers to obtain abortions rather than face prosecution.

Additionally, Dunn raised concerns about added costs to law enforcement agencies to enforce the law and questioned why a criminal statute would include a “sunset provision” if there’s not some question about its soundness. Unless the Legislature decides otherwise, the law “shall cease to be effective July 1, 2016.”

“I’m not really sure what kind of Pandora’s box we’re opening up there,” Dunn said during the floor debate.

Weaver brushed off Dunn’s legal and fiscal concerns as well, saying they weren’t widely held in the state among judges and law enforcement. And the sunset provision is a proactive measure to ensure the Legislature takes the time to re-examine the law after seeing it in effect, she said.

Dunn told TNReport this week that he still has the same concerns about the law that he had when it passed. And in all likelihood, he said, it’ll be difficult or impossible for lawmakers to factually determine how many women purposely avoided doctors or aborted their pregnancies because of the law when it comes time to discuss it again as the sunset date approaches.

“The thing is, the numbers that we’re not going to be able to collect are the women who avoided health care treatment, the women who destroyed and got rid of the evidence — their baby — in order not to get prosecuted for it,” Dunn said.

Dunn’s concerns were to some degree also echoed this week by Weaver’s Democratic challenger for her House seat, Sarah Marie Smith of Carthage.

“It’s not a bill I would have voted for,” Smith told TNReport. “(Weaver) is not a physician. It’s a knee-jerk reaction kind of thing, this bill. It is not long-range and there isn’t critical thinking in it, and I don’t think she checked with the experts in the field about what this will do to a child.”

Sen. Hensley, M.D.: If Law Doesn’t Include Meth, It Ought To — And Maybe Booze & Cigarettes, Too

One lawmaker who is in support of the new law does happen to be a physician. And if anything, Hohenwald Republican Sen. Joey Hensley thinks the law ought to be expanded. Alcohol, and to a somewhat lesser degree, tobacco, are also substances the Legislature should consider prohibiting women from abusing — at least in such ways as clear harm comes to their babies because of it, said Hensley.

Hensley, who voted in favor of the Weaver-Tate law and still fully supports it, told TNReport he certainly thinks it ought to cover meth abuse by pregnant women. And he thought it did when he voted for it, he said. But he also indicated that unless the law is clear that methamphetamine or any other specific drug is unequivocally covered under the criminal statute’s wording, then it would be improper for law enforcement or other government authorities to be attempting to use it to punish women under their own broader interpretation.

He reiterated, though, that if it doesn’t cover meth now, then the law should be expanded so that it expressly does. “Certainly, using methamphetamine is just as harmful to a child as taking a narcotic, and maybe even more harmful,” Hensley said.

In related news, in East Tennessee’s federal courts a 27-year-old Dandridge woman was sentenced Tuesday to 12-and-a-half years in federal prison for making and using meth while pregnant.

Mark Engler contributed to this story.