No, TN is Not ‘Criminalizing Pregnant Women’

In April Tennessee governor Bill Haslam signed into law S.B. 1391, which permits the prosecution of women whose use of narcotics during pregnancy causes harm to, or kills, their child. On July 8, 26-year-old Mallory Loyola became the first woman to be arrested under the law when her newborn tested positive for methamphetamine. She could face up to one year in prison, or a fine of $2,500.

The law broaches a complex issue that merits a bit of thought, which is why it is unfortunate that ThinkProgress and similar outlets have become involved. ThinkProgress’s gloss on the matter: “How Tennessee Criminalized Pregnancy, and Why It Matters.” Not to be outdone, the Feminist Majority Foundation blog scolded the Tennessee legislature for “criminalizing pregnant women.”

These are ham-fisted ways of framing the issue, to say the least, but they indicate how staunchly the debate over this law relies not on conclusions, but on premises. If one maintains that until the moment of birth the thing inside the womb is a cluster of cells, then it makes no sense to penalize a pregnant woman for using narcotics over and above the legal restrictions already in place. By the same logic one should be able to prosecute those with tumors or cysts.

The logic of the law rests on a different premise: that the cluster of cells is a child, or at least a likely child-to-be, in which case it merits the same protections as a child outside the womb. Fourteen states have already criminalized prenatal exposure of a child to harm due to drug use, and a number of others prosecute as child abuse manufacturing drugs in the presence of children, giving drugs to children, or (for legal caregivers) using drugs in such a way that one is unable to care for a child. It is the aggressiveness, not the rationale, of Tennessee’s law that makes it noteworthy.

Talk of “criminalizing pregnant women” deflects a relevant question in favor of an emotional ploy. Jessica Valenti-types would much prefer 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.

These premises are mutually exclusive, and they are binary — you cannot remain agnostic. But they can also be ignored by viewing the issue as a matter of potential outcomes. For example, opponents of the law contend that criminalizing narcotics use during pregnancy discourages women from seeking treatment for fear of legal consequences. But there is reason to believe that under this law, women suffering from drug addiction would be able to receive treatment. Although it is not in the text of the bill (linked above), a local news outlet reported in April that women can avoid criminal charges “if they get treatment before the child is born, remain in the program after delivery and successfully complete the program.” That would accord with jurisdictions all over the country where defendants facing minor drug-related charges can avoid prison time by going into rehab.

As a matter of outcomes, what is more worrisome is that newborn children could lose mothers imprisoned under this law, a detriment that has been amply documented. Additionally, viewed from the perspective of outcomes there is little reason not to criminalize smoking or drinking alcohol during pregnancy. If the goal is the healthiest possible babies, why not allow more strident steps? However, there is legal precedent for extending prohibitions against narcotics use; there is none for expanding laws against tobacco or alcohol use in a similar way.

It is worthwhile to ask whether the law should be the vehicle of public health. That premise, too, underlies this debate. And, of course, what is finally at stake is one’s position on drug use. Do drugs constitute a special type of danger to one’s person and society at large? Or are they intoxicants in the same class as alcohol and tobacco, if only to a more powerful degree?

These questions and others ground the debate over this law, and any consideration that does not take them into account is lacking. But that requires some deeper thinking. Maybe ThinkProgress should change its name.

Ian Tuttle — Ian Tuttle is the former Thomas L. Rhodes Journalism Fellow at the National Review Institute.

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