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A controversial Tennessee law criminalizing mothers of newborns who test positive for narcotics is set to expire this summer, after lawmakers failed to re-authorize the law this week. Under the measure, passed in 2014, Tennessee women can be charged with assault—punishable by up to 15 years in prison—for giving birth to an infant "addicted to or harmed by" a narcotic drug.
The law is controversial because no one wants to condone drug use by pregnant women. But opponents of the law—including the American Medical Association, the American Civil Liberties Union, and those of us who covered it here at Reason—argue that criminalization isn't the answer, as threatening drug-dependent women with jail only discourages them from seeking things like prenatal care and addiction treatment, or from giving birth in hospitals.
What's more, laws like this aren't just used against those who actually cause their babies harm (despite the statutory language). In July 2014, the first woman to be charged under the new law, Mallory Loyola, was arrested after her newborn tested positive for methamphetamine. But the baby was born healthy, and according to the American College of Obstetrics and Gynecology, there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine." Meanwhile, alcohol poses a great risk to fetuses, at least when consumed excess of a certain amount. Yet, as Jacob Sullum noted, "while an expectant mother who drinks a glass of wine in public might attract glares from busybodies, she probably will not attract attention from the police."
The charges against Loyola were eventually dropped after she completed a rehab program. But many more women have been arrested since her—around 100, according to the Knoxville News Sentinel.
Meanwhile, the number of Tennessee newborns who test positive for narcotics has, at least at some hospitals, only increased. And at places such as the University of Tennessee Medical Center, the incidence of deliveries outside the hospital has almost doubled, staff say.
The Tennessee fetal assault law will expire July 1, 2016, if no further action is taken by state legislators.
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