By Sara Satinsky

Should pregnant women who use drugs be charged as criminals or given help? From a public health perspective the choice is clear: provide treatment to help women quit drugs before their use harms their child.

Less than a year ago, Tennessee adopted a progressive policy to provide such treatment, but now is on the brink of taking a big step back. It could become the first state to criminalize pregnant women whose drug use harms a fetus or newborn baby.

The state legislature has passed a bill that, if signed by Gov. Bill Haslam, would authorize the filing of criminal assault charges against a mother if it is determined that she has harmed her fetus or newborn by using illegal drugs.According to The Guardian, the bill says charges can be brought against a woman for “the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug or for criminal homicide if her child dies as a result of her illegal use of a narcotic drug taken while pregnant.”

Curbing the use of illegal drugs by pregnant women is a worthy public health goal, as are efforts to reduce the numbers of children born with symptoms of withdrawal from drugs. But a groundswell of medical, health, substance abuse, and women’s rights professionals and advocates are in emphatic agreement that the bill would do more harm than good. Here’s why:

• If a pregnant woman fears getting busted for drug use, she may avoid medical care. Research published in the journal Drug and Alcohol Dependence found that when faced with a punitive law, some women will “go underground,” for fear of incarceration and losing custody of their child. By compelling a mother who is using drugs to avoid seeking care, the bill could cut pregnant women off from resources that would help them overcome their addictions — even though the bill ostensibly aims to reduce addiction. 
• The bill could mean prison terms for women for whom treatment is a healthier option, at the expense not only of the mother’s future but that of her child. The bill carries a sentence of up to 15 years – a penalty that would also sentence children to growing up without their mothers. Long-term separation of parent and child can trigger a lifetime of mental and physical health problems for children. A 2012 Health Impact Assessment by Human Impact Partners found that sending non-violent offenders to treatment rather than prison would mean healthier lives, stronger families, and safer communities.
  
• The bill does not give equal opportunity to all women. It allows a woman to avoid a sentence if she commits to completing a drug treatment program. But programs are not available in all parts of the state, and less so to women in communities of color and rural areas, potentially creating a funnel to prison for these women who may lack access to treatment programs. “It’s poor women, black and brown women, rural women who will be criminalized,” said Cherisse Scott, chief executive of SisterReach, one of the groups calling for the governor to veto the bill. 
• The bill would mark a serious retreat from state policy designed to encourage pregnant women who are using drugs to seek treatment. Less than a year ago Tennessee enacted the landmark Safe Harbor Act, put forward by the Tennessee Medical Association, to address an alarming increase in the state of children born with symptoms of withdrawal from illegal and legal drugs ­– a tenfold increase over a decade, according to the state Department of Health. The Safe Harbor Act amended the previous law that allowed prosecution of women whose babies were born with withdrawal symptoms, and instead put pregnant women “to the front of the line” to receive drug treatment if they admitted use. Only 11 months have passed – not enough time to see if the Safe Harbor Act is working.

Proponents of the bill say their motivation is to support mothers in getting help for drug use and protecting children. This bill will do the opposite. And that’s why experts are calling on Gov. Haslam to weigh the evidence and veto the bill.

Sara Satinsky, MPH, is a senior researcher at Human Impact Partners, an Oakland, Calif., nonprofit that studies the health and equity impacts of public policy.