Extend or Sunset the Fetal Assault Law in Tennessee
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Introduction
In 2014, the State of Tennessee became the first state in the nation to legislate that pregnant women who use drugs which results in harm to the fetus could be charged with assault and jailed (see Attachment A). Governor Bill Haslam (R) signed Senate Bill 1391 (codified under Tennessee Code Annotated §§ 39-13-107 and 39-13-214) into law, which gained national notoriety as the “Fetal Assault Law”. SB 1391, in fact, amended a law already on the books which permitted the State to prosecute an individual who assaulted a pregnant woman and subsequently harmed the fetus. SB 1391 expanded the definition of “fetal assault” to include the pregnant woman herself as a perpetrator. It permits the State to prosecute the pregnant woman, and charge her with aggravated assault, if her child is born addicted to or harmed by a narcotic drug while in utero. If convicted, the woman charged with aggravated assault face a maximum penalty of 15 years in prison. Women can avoid jail time by enrolling in a long term addiction recovery program before the child is born, remaining in the programs after delivery, and successfully completing the program – regardless of whether the child is born addicted to, dependent upon, or harmed by the narcotic drug.
The legislation included a sunset clause that expires the expanded definition of fetal assault (the aspect that implicates the pregnant woman who takes drugs that harm the fetus) at the end of this year. This means that if the legislature fails to extend the sunset or end date, then the language will automatically expire and be removed. As a member of the Tennessee Senate Judiciary Committee, you are preparing to decide whether or not to extend the legislation. You must decide how to cast your vote – should the language become permanent or sunset? Neonatal Abstinence Syndrome The Fetal Assault Law was initially passed in response to the growing number of babies being born with Neonatal Abstinence Syndrome (NAS) in the State of Tennessee. A consequence of the opioid epidemic, NAS occurs when an infant is exposed to an opioid in utero and experiences withdrawal from opioid substances upon birth. Common characteristics of a baby with NAS include:
Excessive fussiness
Inconsolable
Difficulty sleeping
Feeding problems, sometimes severe enough to require a feeding tube
Breathing problems
Seizures
The Centers for Disease Control and Prevention (2012) estimates that every 25 minutes a baby is born in the U.S. with an opioid addiction. In 2012, the latest data available, hospital charges for all infants with NAS were estimated to be $1.5 billion nationally. Of this, Medicaid programs
Extend or Sunset the Fetal Assault Law in Tennessee
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financed approximately 80% of the health care costs (Patrick, Davis, Lehmann, and Cooper, 2015.).
In Kentucky, the trend for NAS babies was especially severe in the decade spanning 1999-2010, preceding when the law was passed. Table 1 illustrates how the incidence (number of new cases) of NAS in Tennessee increased by 10-fold during this time period, far exceeding the national increase of 3-fold over the same time period:
Table 1
Around 2013, the Tennessee Department of Health initiated a new requirement that the medical community report all cases of NAS diagnosed among Tennessee resident births at the time of diagnosis. This data collection yielded some interesting results. First, unlike the exponential growth of the previous decade, the proportion of NAS births appeared to level off around 2013 and has not changed significantly since. Researchers believe that this may indicate that the NAS epidemic is reaching a plateau in the State (Miller, McDonald, and Warren, 2016). Second, the data yielded more insight regarding the source of drugs among pregnant women:
Since 2013, Table 2 illustrates the shift in the exposure sources associated with NAS, with more mothers of NAS infants taking medications prescribed by a provider.
Extend or Sunset the Fetal Assault Law in Tennessee
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Table 2
In 2015, nearly half of women reported taking only prescription medications during pregnancy, with 81% of those being on medication-assisted treatment (MAT) (Miller, McDonald, and Warren, 2016). MAT combines behavioral therapy and medications to treat substance use disorders.
In 2016, over 70% of mothers who delivered babies were taking at least one medication prescribed to them by a health care provider, either alone or in conjunction with an illegally obtained substance.
Extend or Sunset the Fetal Assault Law in Tennessee
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Legislative History
The Fetal Assault Law was not new legislation, but rather expanded the definition of “fetal assault” which was already codified in existing legislation. The Fetal Assault Law was originally passed in 2011, and was designed to protect pregnant women whose fetuses suffered harm as a result of third-party attacks. This was accomplished by changing the wording in the state’s criminal assault statute, which was expanded to include the:
“fetus of a human being, regardless of viability of the fetus, when any such term refers to the victim of any act made criminal by this part, and when at the time of the criminal act the victim was pregnant.”
Concurrently, the Tennessee legislature made the same change in the state’s criminal homicide statute to include fetuses in the definition of a “person” (Duggan, 2016). Legally, this allowed for two victims of a third-party attack to be recognized: the pregnant woman and her unborn child.
At the time, this change in definition did not sit well with many interests in the State, who viewed it as a slippery slope establishing “personhood” for a fetus where such rights had not before existed. Amid growing concerns that the statute opened the door for prosecution of pregnant women, particularly for aborted pregnancies, in 2012, there was “protective” language added to prevent the prosecution of pregnant women for the outcome of their pregnancies. This provision stated:
“Nothing in [the statute] 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” (Duggan, 2016).
This language in essence protected decisions made by the pregnant women, including drug use, from prosecution. It kept law enforcement focused on criminal penalties for perpetrators when a pregnant women and her fetus was the victim of an attack.
The growing severity of the opioid epidemic, and the appearance of more and more NAS births however, prompted state legislators to reverse their previously held positions on the culpability of pregnant women. The revamping of the Fetal Assault Law to permit prosecution of pregnant women for drug use was a bipartisan push from the start — with the key legislative efforts spearheaded by Senator. Reginald Tate (D-Memphis) and Representative Terri Lynn Weaver (R-Lancaster). Rep. Weaver explained:
“This law brings treatment to the worst of the worst. It’s heartbreaking if you’re a police officer, and you see a woman is seven or eight month’s pregnant and shooting heroin. There is an individual inside that belly that has no choice but to take whatever goes into it.” (Shire, 2014)
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However, not all Republicans were in support of the legislation. Senator Mike Bell (R), a conservative, opposed the bill as he was concerned that it would encourage abortion to avoid prosecution, an outcome that was inconsistent with his pro-life platform. He said he didn’t want to do anything “that would encourage a woman to have an abortion or end a pregnancy to avoid prosecution.” (Shire, 2014) Senator Steve Dickerson (R) raised concerns that the possibility of prosecution might discourage women from seeking prenatal care. As a practicing physician when he is not in the legislature, he argued that prenatal care is even more crucial for women who may be using opioids while pregnant.
Health advocates and civil rights groups were outraged with the proposed definitional expansion of fetal assault. Similar to Sen. Dickerson, they argued that the law would deter women from seeking needed medical care due to fear of being prosecuted. They were also concerned that it would separate moms and babies and lead to more severe health outcomes than NAS.
Dr. Jessica Young, the Director of the Obstetrics and Drug Dependency Clinic at Vanderbilt University, has a practice that specializes in treating drug-addicted pregnant women. She said:
“I’m particularly nervous about is how this law is going to effect women and their fears about getting care. I find my patients are already afraid to admit their problems and seek care. I’m concerned this going to drive them from seeking care until it’s too late or cause them to try to self-detox in an unsafe manner, that is unsafe for them and for their fetus.” (“Tennessee law criminalizes,” 2014).
She went on to say:
“This is particularly true for the class of drug that we see most frequently, which is opioids. That class of medication cannot be stopped abruptly without causing severe withdrawal symptoms. While for moms this is not life threatening, for a pregnant woman it can cause preterm labor or stillbirth. If those withdrawal symptoms are happening repeatedly throughout the pregnancy, it can cause the baby not to grow well. So stopping immediately opiates for pregnant women is very dangerous.”
Dr. Kathy Hartke of the American College of Obstetricians and Gynecologists (ACOG) said
“Addiction is a chronic, relapsing biological and behavioral disorder with genetic components. It’s not a moral failing. It’s not different than hypertension. The ACOG’s official view is to oppose legal actions that criminalize pregnant women’s behavior towards their fetuses.” (Shire, 2014)
Rep. Weaver was vehement in her disagreement, noting:
“…any society which puts value on life would agree that these defenseless children deserve some protection and these babies need a voice.” (Hale & Zeliniski, 2014)
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Civil rights groups also protested that legislating pregnancy was a gross overreach of government authority and infringement on a woman’s constitutionally-protected and fundamental liberty rights. Lynn Paltrow, executive director of National Advocates for Pregnant Women, a nonprofit civil rights group, argued that punitive measures, in addition to running counterproductive to the welfare of moms, creates a separate and unequal system of law for pregnant women. She said:
“We either respond to this as a public health issue… or we decide as a society that, yes indeed, we want to put police officers and prosecutors in the delivery room.” (Shire, 2014)
The opposition disagreed, arguing that:
“Talk of ‘criminalizing pregnant women’ deflects a relevant question in favor of an emotional ploy…a prefer[ence] to dwell on a woman’s right to make decisions – even poor ones – about her own body without openly acknowledging the premises of that argument.” (Tuttle, 2104)
Despite significant special interest opposition, both the Tennessee Senate and House overwhelmingly passed the legislation in 2012 with bipartisan support.
Fetal Assault-Like Laws Nationwide
Legislating pregnancy is not unique to Tennessee and states have a variety of laws and policies in place (Areas-Holmbad, 2017):
In 37 states, the unlawful killing of an unborn child is recognized as a homicide in at least some circumstances.
In 23 states, prenatal drug use is considered to be child abuse. Pregnant women in Minnesota, South Dakota and Wisconsin, can be forcefully admitted to inpatient treatment programs or civil commitments.
In 23 states, treatment providers are mandatory reporters of suspicions of prenatal drug use.
In 7 states, providers are required to test a pregnant woman if they suspect she is using drugs.
Both Alabama and South Carolina have used interpretations of existing laws to punish pregnant women who use drugs.
In Missouri, new mothers who were previously convicted are considered to be unfit caretakers if they test positive for drugs within eight hours of giving birth.
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Access to drug treatment is prioritized for pregnant women in 16 states. There are 19 states that have rehabilitation programs specifically for pregnant women struggling with addiction. Another 23 states require treatment providers to report suspicions of prenatal drug use.
Indiana is the only state that prohibits physicians from releasing drug test results of a pregnant woman without her authorization.
Effectiveness of the law
There is little data available regarding the effectiveness of the law in reducing NAS. As noted earlier, the surveillance data suggested that the incidence of NAS births was already beginning to plateau in the State around the time the legislation was passed. To date, approximately 100 women were detained under the legislation, serving an average of six months in jail (Areas- Holmblad, 2017).
A primary criticism of the law that arose during implementation is that while the legislation permits women to avoid jail time if they seek treatment, there are insufficient beds or providers to support the need. Of the 177 treatment facilities throughout Tennessee, only 19 in the entire state list themselves as serving pregnant women. Furthermore, transportation barriers, cost, waiting lists, and lack of childcare and mental health services further impede access, particularly during the short time frame of pregnancy (ACLU, 2016). Data from the Tennessee Department of Health show that, in general, only 10 percent of women in the state who need drug treatment actually receive services (Areas- Holmblad, 2017).
There is also evidence that some of the concerns from the medical community that the legislation would cause women not to seek care, may in fact be bearing out to be true. Allison Glass, the State Director of Healthy and Free Tennessee, a nonprofit women’s advocacy group said:
“We are getting lots of anecdotal information about women not seeking critical prenatal care, and avoiding going to the hospital to give birth, because they are scared of being arrested and having their baby taken away. Not only does the current law do nothing to help those who may, in fact, need treatment, but it’s actually having a negative public health impact.” (Shire, 2014)
Similarly, the East Tennessee Children’s Hospital noted differences in prenatal care among babies admitted to its NICU. In the six months before the law was enacted, only two babies were admitted to the NICU whose mothers did not receive prenatal care while pregnant. In the six months after the law went into effect, there were 33 NICU admissions with no prenatal care (ASAP, 2016).
Extend or Sunset the Fetal Assault Law in Tennessee
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Teen Pregnancy Programs
For additional consideration by Committee members is the August 2017 decision from the Trump Administration to terminate the Teenage Pregnancy Prevention program. This program, administered by the Department of Health and Human Services, provided grants to hospitals, schools, and community groups to prevent teen pregnancy. The program funding could only be used for evidence-based pregnancy reduction programs – in other words, strategies that were rigorously evaluated and proven to demonstrate results. Funding could only be dedicated to prevention programs, no abortions were provided. As the Program was only in operation for three years, grantees were caught off guard that funding was to be eliminated within the next year. Three organizations in Tennessee will be losing funding: Centerstone of Tennessee, Inc., which was receiving $2 million per year and serving 15,000 teenagers. Douglas-Cherokee Economic Authority, Inc., which was receiving $1 million per year and serving 1,550 teens. Le Bonheur Community Health and Well-Being, which was receiving $1.2 million per year and targeted 4,000 youths ages 11 – 19 (“Current Teen Pregnancy,” n.d.). The impact of these funding reductions on teen pregnancy rates is still unknown. The teenage birth rates in the U.S. have dropped dramatically in the past two decades, and this trend was evident as well in Tennessee. According to the Tennessee Department of Health (DOH) Deputy Commissioner for Population Health Dr. Michael Warren: “Consistent with national trends, Tennessee’s birth rates for adolescents aged 15-19 steadily declined from 53.8 in 2008 to 33.0 in 2014, and teen pregnancy rates declined from 64.7 to 37.9 per 1,000 teens. We are proud of this progress and continue our efforts to educate parents, teens, health professionals and other community partners about ways to further reduce pregnancies among young Tennesseans”(“Teen Pregnancy Continues,” 2016). The DOH has not detected a spike in NAS babies born to teen mothers. However, given the reduction in teen pregnancy prevention dollars, there is concern about synergy between the ongoing opioid crisis, a possible rise in teen pregnancies, and the birth of NAS babies.
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Class Discussion
1. What data on NAS was most convincing for you in your decision-making process and why?
2. Which stakeholder viewpoints on the legislation were most compelling to you and why?
3. What relevance does the information on what other states are doing potentially have in your decision-making process?
4. How might federal decisions to scale back on funding for teen pregnancy programs impact the State and your decision-making process?
5. Is the legislation a violation of individual liberty or due process rights for the pregnant woman? Explain.
6. Does the state’s interest in protecting the fetus outweigh the state’s responsibility to protect the individual rights of mother? Explain.
7. Do societal costs of NAS outweigh a pregnant woman’s individual rights? Explain.
8. Will you vote to extend or sunset the legislation?
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Attachment A
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SOURCES:
Allies for Substance Abuse Prevention (2016, July 14). From the Director – sunset of Tennessee’s fetal assault law and impact on newborns. Retrieved from: http://www.asapofanderson.org/07/from-the-director-sunset-of-tennessees-fetal-assault-law-and-impact-on-newborns/.
American Civil Liberties Union of Tennessee. (n.d.) Tennessee’s Fetal Assault Law Sunsets July 1, 2016. Retrieved from: http://www.aclu-tn.org/wp-content/uploads/2016/09/Fetal-Assault-Legal.pdf
Areas- Holmblad, L. (2017, January 20). The legal consequences of using drugs while pregnant. Retrieved from: https://www.drugaddictionnow.com/2017/01/20/legal-consequences-using-drugs-pregnant/
Current Teen Pregnancy Prevention Program Grantees. (n.d.). Department of Health and Human Services, Office of Adolescent Health. Retrieved from: https://www.hhs.gov/ash/oah/grant-programs/teen-pregnancy-prevention-program-tpp/current-grantees/index.html
Duggan, E. (2016). A velvet hammer: The criminalization of motherhood and the new maternalism. California Law Review, 104, 1299. Retrieved from: http://www.californialawreview.org/wp-content/uploads/2016/11/6-Duggan.pdf
Hale S and A. Zelinksi. (8 May, 2014). By signing the controversial SB 1391, Gov. Bill Haslam makes Tennessee a battleground over the rights of pregnant women and prosecutorial bounds. Nashville Scene. Retrieved from: https://www.nashvillescene.com/news/article/13053784/by-signing-the-controversial-sb-1391-gov-bill-haslam-makes-tennessee-a-battleground-over-the-rights-of-pregnant-women-and-prosecutorial-bounds.
Patrick SW, Davis MM, Lehmann CU, and WO Cooper. (2015). Increasing incidence and geographic distribution of neonatal abstinence syndrome: United States 2009 to 2012. Journal of Perinatology 35: 650–5.
Miller AM, McDonald M and MD Warren. (2017). Neonatal Abstinence Syndrome Surveillance Annual Report 2016. Tennessee Department of Health, Nashville, TN. Retrieved from: https://www.tn.gov/assets/entities/health/attachments/NAS_Annual_report_2016_FINAL.pdf
Shire, E. (2014, April 15). Tennessee is making pregnancy a criminal liability. The Daily Beast. Retrieved from: http://www.thedailybeast.com/tennessee-is-making-pregnancy-a-criminal-liability.
Teen pregnancy continues to decline in Tennessee (2016, May 4). Retrieved from: https://www.tn.gov/health/news/40828
Tennessee law criminalizes pregnant drug addicts. (2016, June 28). MSNBC. Retrieved from: http://www.msnbc.com/msnbc-live/watch/tenn.-law-criminalizes-pregnant-drug-addicts-291783747691
Tuttle, I. (16 July, 2014). No, TN is not criminalizing pregnant women. The Corner. Retrieved from: http://www.nationalreview.com/corner/382906/no-tn-not-criminalizing-pregnant-women-ian-tuttle
