by Melissa Ballengee Alexander

“These ladies are the worst of the worst. . . . ” Or, at least so said the sponsor of the nation’s first criminal law expressly authorizing prosecution of women for assault based on illegal drug use during pregnancy. Admittedly, there is intuitive appeal to throwing a pregnant woman who uses drugs in jail. The images of a baby detoxing can be heart-wrenching, and the idea of a mother who would harm her baby for a “high” is abhorrent. On the surface, these cases typify good versus evil.

However, medical experts who have studied pregnant drug use uniformly oppose criminalization. They describe drug addiction as a disease that requires treatment. Where others see blame, medical experts point to a complicated confluence of genetic, environmental, and structural factors that make certain individuals uniquely vulnerable to drug use. With regard to pregnant women, physicians emphasize the interconnectedness of mother and baby and warn that criminalizing pregnant drug use is far more likely to deter prenatal care than to deter drug use. The narrative of good versus evil must be rewritten to reflect empirical evidence that disease and structural violence play a significant, often understated, role in pregnant drug use.

Nonetheless, it is indisputable that there is a growing epidemic of narcotic drug use among pregnant women. Nationwide, the incidence of Neonatal Abstinence Syndrome (NAS)—a clinical diagnosis of drug withdrawal syndrome in a baby commonly caused by exposure to narcotic drugs in utero—nearly tripled from 2000 to 2009. The incidence of NAS then doubled again from 2009 to 2012. As a result, prosecutors are increasingly demanding further criminalization of pregnant drug use.

Yet, experts report that the NAS epidemic appears to be primarily driven by a nationwide increase in prescription drug use. To be successful and reverse the tide of NAS births, legal reform must focus on preventing prescription drug abuse among all population groups, as well as increasing access to education, birth control, and drug treatment. Although popular, criminalization will not stem the rise in NAS births.

In 2014, Tennessee passed the nation’s first criminal law expressly authorizing prosecutors to charge women with assault based on illegal drug use during pregnancy. Since then, five other states have proposed virtually identical legislation. Even without such a law, states around the country criminally prosecute women for drug use during pregnancy pursuant to child endangerment, feticide, and other statutes that do not expressly apply to in utero exposure to drugs. However, few indictments under other states’ generic statutes have resulted in convictions that withstood appeal; therefore, the implications of Tennessee’s express law could be profound. The goal of this article is to convince other states to avoid mimicking the express criminalization of pregnant drug use that Tennessee adopted and to encourage lawmakers in Tennessee to allow their law to lapse automatically. Absent further legislative action, Tennessee’s law will cease to be effective on July 1, 2016.

This article analyzes how Tennessee’s unprecedented law is flawed and describes why even a more carefully crafted law criminalizing pregnant drug use would be bad public policy because such laws ignore the interconnectedness between mother and baby as well as addiction’s unique challenges as a medical disease. Section I provides background information on NAS and traces the intertwined histories of fetal rights, personhood, and assault liability. Section II illustrates how Tennessee’s law is poorly targeted, ignoring the overwhelming majority of NAS births—two-thirds of which are associated with prescription drugs. This section then outlines the illusory nature of the affirmative defense for drug treatment and the injustice of the law as applied to women who have repeatedly sought treatment, only to be turned away because treatment was unavailable or unaffordable. It explains how the law, influenced by the fetal protection and personhood movements, rests on the legal fiction that a pregnant woman and her fetus are separate and independent persons. In reality, a mother and her fetus is a dyad, thoroughly intertwined. By failing to appreciate the interconnected nature of this relationship, the law undervalues shared interests, especially the degree to which threatening and punishing a mother intrinsically threatens and punishes her baby. The thirty-seven other states that have fetal protection laws may also be at risk of undervaluing the shared interests of this relationship. Section II closes by focusing on potential harm lurking in the sweeping, under-reported provision of the new law that criminalizes any unlawful act by a pregnant woman that injures her fetus.

In Section III, the article shifts to a more general critique of any law criminalizing pregnant drug use. Using Tennessee as a case study, this section illustrates how criminalizing pregnant women’s drug use fails to effectively accomplish five objectives of criminal law—to restore, incapacitate, rehabilitate, deter, or punish. Such laws ignore the impact of prescription drugs, the intertwined relationship between mother and baby, and drug addiction’s unique challenges as a medical disease. In doing so, criminalization incentivizes abortion, deters prenatal care, wastes taxpayer money, and undermines the health and well-being of the baby.


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