Republican Tennessee Governor Bill Haslam signed a controversial bill into law at the end of April, criminalizing illegal drug use by pregnant mothers if the child goes into drug withdrawal or develops neonatal abstinence syndrome (NAS) at birth. Effective July 1, 2014, it allows women to be charged with assault if they abuse narcotics during their pregnancy that results in the birth of a child who is born with drug dependency or harmed as a result of the drug use. One major criticism is that any woman whose pregnancy has a poor outcome- such as a miscarriage, stillbirth or child born with a birth defect – could be subject to a criminal investigation.
Tennessee is the first state to pass such a law, which is a response to the growing number of infants born with drug dependency. A study published in the Journal of the American Medical Association ( JAMA ) in 2012 reported that one infant per hour in the United states is born with signs of drug withdrawal. The rate of NAS diagnosis is 3.4 per 1,000 infants born in hospitals.
The Tennessee bill passed in the state house of representatives April 9 on a 64-30 vote, after being passed by the state senate April 7 by a vote of 26-7. The original language of the bill, which allowed a woman to be charged with homicide if her fetus or baby died, was modified to be less harsh. Under the new law, the charge would be aggravated assault.
NAS Symptoms and Treatment
Neonatal abstinence syndrome (NAS) occurs after the birth of an infant who was as exposed to addictive illegal or prescription drugs while in the mother’s womb. The substance abused by the mother passes through the placenta to the fetus during pregnancy, At birth, the baby is dependent on the drug, potentially causing symptoms of withdrawal that vary depending on the drug. Symptoms occur anywhere from one to 10 days after birth, and may include diarrhea, fever, vomiting, irritability, poor feeding, respiratory difficulties, seizure and other difficulties.
Drug abuse during pregnancy can cause birth defects, low birth weight, premature birth and may even result in Sudden Infant Death Syndrome (SIDS). NAS can last as long as six months. Severe cases may require the use of medication such as methadone or morphine. Recent research suggests that buprenorphine is also effective.
Tennessee Ranks High for Opioid Painkiller Use
A recent study published in the journal JAMA Internal Medicine reported that each year from 2007 through 2011, one in three residents of Tennessee filled a prescription for opioid pain medication. The state has a population of about 6.5 million, and 37 million prescriptions for narcotic painkillers were written between 2007 and 2011. The study notes that from 2003 through 2011, annual drug overdose deaths in the state rose from 422 to 1,059, with opioids causing more of those deaths than heroin and cocaine combined. For example, prescription overdoses accounted for 564 of the fatal overdoses in 2011. The number of NAS cases has been rising steadily for many years, with 921 cases reported in 2013. Estimates put the number of mothers who were using legally prescribed opiate painkillers as high as 60 percent.
Since 2007-2008, when the federal Centers for Disease Control and Prevention (CDC) ranked Tennessee first among all states for non-medical use of prescription painkillers by people 26 or older, the state government has implemented various measures to control drug abuse, many of which were effective in 2013. For example, NAS was added to the list of reportable diseases and events. A state-wide Controlled Substance Monitoring Database was established by the Tennessee Department of Health (TDH) to record and track new prescriptions of opioids and benzodiazepines to reduce doctor-shopping. The state managed care Medicaid program, TennCare, strengthened its prior authorization process to alert prescribers to discuss the risk of NAS with all women of childbearing age.
The Tennessee government acknowledges that the cost of NAS for TennCare is a significant issue, noting that the cost of healthy newborn in 2012 was $4,736, while the average cost of treating a newborn with NAS was $52,324. Approximately 1.2 million state residents are enrolled in TennCare.
Tennessee’s Safe Harbor Act
Tennessee’s Safe Harbor Act , drafted by the Tennessee Medical Association, took effect May 14, 2013. The law gave pregnant women with drug problems a “safe harbor,” protecting them from having their newborns taken into custody by the Department of Children’s Services (DCS) solely for drug abuse, on the condition that they get prenatal care and enter drug treatment therapy. The law directed that pregnant women referred for treatment of drug abuse or drug dependency would be given priority at any treatment facility that received public funding. Data indicates that one reason for an increase in the number of children in state custody from 6,000 in 2006 to 8,000 in 2012 was the growing number of newborns with NAS.
While physicians and public health advocates promoted the Safe Harbor Act and its approach to addiction as a disease, others wanted an approach more focused on law enforcement. The executive director of the Tennessee District Attorneys General Conference said that while his group had no problem with treatment, “if we have a child that’s damaged …or stillborn, we need the ability to prosecute.” The position of the medical association was that “We cannot arrest our way out of the problem,” and that a punitive approach could prevent mothers from seeking treatment.
Competing bills at the time called for changing the definition of a victim of crime in Tennessee so that an embryo or fetus could be a victim of assault or homicide.
Opponents Rally Against Criminalization
Tennessee is the first state in the nation to successfully pass a law that permits criminal prosecution of pregnant women based on the outcome of a pregnancy. Before signing the bill into law, Gov. Haslam said he understood the nation-wide concerns that were expressed by various groups including the state and national American Civil Liberties Union, which called the law “dangerous.” A petition from Planned Parenthood bearing 10,500 names was delivered to the governor’s office, calling on him to veto the bill. Several national medical groups, including the American Medical Association, the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists, also opposed criminalization, as did the Tennessee Association of Alcohol, Drug Abuse and other Addiction Services (TAADAA). A number of social and religious organizations said that the new law is particularly unfair to poor women, women in rural communities, and women of color .
” The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs,” Gov. Haslam said in a written statement. A spokesperson from his office noted that any charges would be limited to a misdemeanor, and an offense would only occur if there is illegal use of a narcotic drug, and women who seek and complete a treatment program during their pregnancies would not be charged.
The law still allows mothers to avoid criminal charges if they enter treatment, and has a built-in sunset provision that requires lawmakers to revisit it in 2016. However, records indicate that Tennessee has 177 addiction treatment facilities; 19 of them offer addiction care for pregnant women.
The White House Office of National Drug Control Policy expressed concern that the move to criminalize mothers who use illegal drugs is counter to the Obama administration’s efforts to treat drug policy as a public health issue instead of a law enforcement issue.
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