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Is Jailing Mothers the Answer?

New Laws Propose Women be Jailed for Pregnancy Outcomes

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Many are citing an alarming trend in recent legislation aimed at pregnant woman. For example, two proposed pieces of legislation in Tennessee aims to criminalize women who use illegal drugs while pregnant. Tennessee House Bill 1259, sponsored by Rep. John DeBerry (D-Memphis), “provides that a mother can be prosecuted for an assaultive offense or homicide if she illegally takes a narcotic drug while pregnant and the child is born addicted, is harmed, or dies because of the drug.” Sen. Reginald Tate (D-Memphis) proposed Tennessee Senate Bill 1391, which “provides that a mother can be prosecuted for an assaultive offense or homicide if she illegally takes a narcotic drug while pregnant and the child is born addicted, is harmed, or dies because of the drug.”

The Memphis Flyer reports that “Critics of both bills, as they are written now, say they're seeking to criminalize pregnant women and that the bills could have a negative effect on the care the baby receives.”

Both local advocates and medical professionals decry these potential laws. The American Academy of Pediatrics notes that, “The [Academy] is concerned that [arresting drug addicted women who become pregnant] may discourage mothers and their infants from receiving the very medical care and social support systems that are crucial to their treatment.”

The American Medical Association Board of Trustees has argued, “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.”

Allison Glass, organizer for Healthy and Free Tennessee, which promotes reproductive health and sexual freedom, noted in The Memphis Flyer that, “These women need supportive programs. Punitive measures will only make women not seek prenatal care. They will lie to their doctors [about their drug use], and it could lead to unwanted abortions by women who are afraid of getting prosecuted and convicted.”  

And National Advocates for Pregnant Women, this legislation would “create a gender-specific set of crimes that would make women criminally liable for an undefined and indefinable range of acts and omissions that may be perceived by outsiders as affecting pregnancy outcomes.”

After receiving such outcry, the Democrats who sponsored these bills are reconsidering the language of the measures. Salon.com reports that Sen. Reginald Tate said he is open to the possibility of removing language that would allow assault and criminal homicide charges to be brought against pregnant people found to be using drugs. “If those are the red flags in the bill for a lot of these women’s groups, then I’ll either take that out or I’ll take the bill off notice,” DeBerry said of the proposed changes. “There is absolutely no intent on simply trying to incarcerate them,” he continued. “But some women’s groups were afraid, even with the drug court’s record, that someone will use this as some kind of stick against pregnant women.”

Tennessee’s recent proposals are far from alone. Most of these cases involve issues of substance abuse, but some legislation seek to bring charges against pregnant women for even miscarriages and stillbirths. For example, Iowa is one of 37 states with a feticide laws. RH Reality Check notes that in the case of Christine Taylor outdated feticide laws got a pregnant mother arrested. In 2010, Taylor, a pregnant mother of two, fell down a flight of stairs after arguing with her estranged husband. Later, she was charged with attempted homicide under Iowa’s feticide law, after being treated at her local ER, where she went to check on the health of her fetus and admitted doubt towards her desire to carry the pregnancy to term.

These laws reflect the anxiety around reproductive justice, abortion, and women’s bodily autonomy. While proponents of these laws argue that they are fighting for the lives of children, opponents counter that these laws create a hostile environment for mothers.

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