The pressure is on Gov. Bill Haslam of Tennessee to veto a bill that would make every mother who used illicit drugs — and probably treatment medications like methadone — while pregnant criminally liable. The proposed legislation, HB 1295 in the House and companion SB 1391 in the Senate, was passed by both chambers of the state legislature the week of April 7.

If signed, the bill would mean women could be arrested and charged with assault if their babies are harmed or born drug-dependent. The bill’s supporters in the legislature say the proposal gives law enforcement a “velvet hammer,” encouraging mothers who use drugs to get treatment before their babies are born. If they don’t, they would go to jail. If they do, their records would be expunged.

Unless Governor Haslam vetoes the bill this week, it will become law.

The measure led to a widespread call for a veto from the national press, including from the women’s magazine Cosmopolitan, which reported on the bill April 10.

Medical experts said that the measure will deter women from seeking care.

Treatment medications not excluded

It’s also not clear whether the law protects women who are taking prescribed medication, such as methadone or buprenorphine, as treatment for addiction. These medications do pass through to the fetus and sometimes result in neonatal abstinence syndrome, a transient and treatable condition.

The bill requires women to “complete a program” to avoid incarceration; such language appears to exclude maintenance medication.

“With the threat of criminal prosecution for any infant that is born dependent, there is no exception for treatment medication,” said Zachary C. Talbott, director of the Tennessee Statewide and Northwestern Georgia chapter of the National Alliance for Medication Assisted Recovery. “That opens up the door” to prosecuting women who are in medication-assisted treatment (MAT), he said.

Rural hospitals and prosecutors

Medical staff in rural hospitals in Tennessee “aren’t educated about MAT,” said Talbott. “Combine this with the prosecutors who aren’t educated on MAT, and our fear is that women will be prosecuted for doing what is medically best for them and their babies.”

Noting that Tennessee has only 12 opioid treatment programs, compared to 52 in Georgia, Talbott said, “It’s the lack of treatment that is the real problem.”

Pregnant women who are on methadone or buprenorphine should not stop treatment, because of the risk of miscarriage and fetal death, noted Talbott. “That’s why even the worst clinics that are all about the money don’t financially taper pregnant women,” he said. (A "financial taper" is the description for gradually lowering the methadone dose and then discharging a patient from treatment because the patient can’t afford to pay.)

If the bill isn’t vetoed, what will happen to pregnant women on MAT? “They’ll try to suffer through withdrawal, or they’ll end up self-medicating on the street, or if they stay in treatment they could end up in jail and have their babies taken away,” said Talbott.

Many people in Tennessee don’t know about the science of addiction, said Talbott. “I’ve heard people say that if a woman would choose to do this to her unborn baby — we don’t use the word fetus in the Bible Belt — then she deserves not only jail, she deserves the death penalty.”

Legislators have privately told Talbott that they are not in favor of the bill, but they voted for it out of lack of political courage. “If you’re not in our culture here, you don’t understand the personhood issues,” he said. Being able to prosecute a mother for what happens to a fetus fuels the underlying anti-abortion movement, he said.

Harming women and babies

The bill passed through from committee to legislature very quickly, taking advocates by surprise, but the National Advocates for Pregnant Women (NAPW) quickly moved to spread the word.

“Criminalizing pregnancy outcomes scares women away from prenatal care and drug treatment,” said Farah Diaz-Tello, staff attorney with NAPW. She added that it “mandates separating mothers from their babies just when they need each other the most.”

And treatment providers agree. “Supporters of this new insane law probably say it should encourage pregnant addicts to get help before their babies are born,” said Jana Burson, M.D., a North Carolina physician who treats patients with buprenorphine and methadone, in an April 12 blog entry. “That could be true, if Tennessee had adequate treatment programs in place. As we know, methadone and buprenorphine are the best treatments for opioid-addicted pregnant women, yet under this law, this gold standard of treatment may also be considered illegal.”

Rodney Bragg, assistant commissioner of the Tennessee Department of Mental Health and Substance Abuse Services, was unable to talk to us by press time.

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