But a vote on Wednesday against expanding prosecution powers could signal the first step toward repealing the law altogether, said health advocates who say expanding treatment would do more for newborns than putting mothers in jail.
“We feel like people … realize this is not the way to deal with this problem in Tennessee and that we really need to go back to the drawing board,” said Allison Glass, state director of Healthy and Free Tennessee, a nonprofit women’s advocacy group. “The vote signifies that people are really rethinking the punitive way that this law deals with this.”
Confronting a growing wave of babies born to addicted mothers, the state has scrambled to respond.
After first passing measures to count cases and to encourage women to get treatment, Tennessee last year became the first state in the nation to try a criminal penalty — misdemeanor assault — against moms who give birth to babies who test positive for narcotics.
A proposal this year would have added methamphetamine to the list of drugs that could trigger arrests. Entering this week, the plan to expand the law had momentum in the House and had cleared the committee process.
But the Senate Judiciary killed the bill in a 5-3 vote Wednesday, giving opponents hope of ending prosecutions next year when the law comes up for a mandatory review of its effectiveness.
Opponents said prosecuting moms who use meth, in particular, would have set off a slew of unintended complications. Those concerns are on top of arguments held during prior debates charging that the threat of arrest drives women away from treatment, and that lawmakers don’t understand the science of addiction and haven’t done enough to monitor the prosecutions they made possible.
Before the expansion died in the Senate, the House sponsor, Rep. Terri Lynn Weaver, R-Lancaster, said predictions that “the sky’s gonna fall” haven’t materialized.
“I don’t believe for a minute that this bill has a negative impact,” she said. “It gets (women) on trajectory to getting help.”
The law allows an assault charge against a woman if her newborn tests positive for drugs. The mother can avoid jail if she can get into and complete a treatment program. Weaver said arrests got several Memphis-area women into the city’s rehabilitative drug court.
But whether prosecutions will stem the tide of drug-dependent births remains to be seen, and they’re still on the rise this year. The law was created with a 2016 “sunset” provision, so it’s in a critical evaluation period.
Weaver describes the research as a work in progress — “the proof will be in the pudding” — but several measurements are already available:
–For the 14th year in a row, Tennessee is on pace this year for more drug-dependent births than the year before — approaching 1,000 out of the state’s 80,000 annual births — state numbers show.
–Incidents of meth causing children to be taken into state custody have already been declining sharply, down from 330 cases in 2011 to 186 cases in 2014.
–In the last six months of 2014, after the prosecution law took effect, the state counted 57 drug-dependent babies born to Tennessee women who went out of state to give birth.
There is one number that’s unknown: the count of how many women have been prosecuted.
Lawmakers didn’t give anyone the responsibility for tracking that figure. The Tennessee Bureau of Investigation, which tracks numerous crimes, isn’t monitoring these arrests. And the Tennessee District Attorneys General Conference, which pushed for the prosecutorial power, isn’t keeping track, either. The state Department of Safety recently conducted a survey of prosecutors across the state but has not provided the results.
Observers are left to cobble together estimates. Between advocacy groups, lawmakers and media reports, The Tennessean has identified 28 women charged.
“We don’t think we should be expanding this law to include more (drugs) without really understanding the impact that the law is having,” Glass said. “There isn’t oversight.”
Glass’ organization has led opponents — including treatment centers, the ACLU, women’s rights groups and doctors — in speaking against the legislation.
“If the intention was to help the health of these babies … it is having the opposite effect,” she said.
Senators who voted down the meth provision raised concerns about the availability of drug treatment centers for pregnant women and expressed hesitance about expanding the law before knowing whether arrests have made a difference.
Fear and false positives
Weaver said she wanted to give prosecutors the power to charge in meth abuse cases because the drug is a “huge issue in rural areas.”
But doctors and treatment specialists said common pregnancy drugs can create “false positive” tests for amphetamines and warned that the drug’s effects on newborns aren’t the same as with prescription narcotics, which hospitals have been required to track since 2013.
In her Nashville clinic, obstetrician Jessica Young said she has seen firsthand how the threat of prosecution has made pregnant women fearful, including some who left the state to give birth.
“They know there’s a law. They bring it up. But they don’t know the ins and outs,” Young said. “They know they’re at risk for arrest and prosecution.”
After the prosecution law took effect last summer, state health officials heard rumblings of women leaving Tennessee to give birth and asked hospitals to begin counting. They found 57 out-of-state drug-dependency births in six months.
Young specializes in pregnancies put at risk by addiction at the Obstetrics Drug Dependency Clinic at Vanderbilt. She’s one of five doctors who signed a letter opposing the meth proposal.
She said meth stands apart from last year’s narcotic pain pill law because meth rarely causes the same neonatal abstinence syndrome that state officials have zeroed in on.
And, she said, “false positive tests for meth are very high.”
But especially in rural areas, authorities want tools to fight meth abuse, said Bill Whitesell, interim executive director of the state prosecutors’ conference.
“A lot of people say it’s not the right approach, but the district attorneys feel we have innocent children who are being harmed, in some cases to the point of death, and someone needs to be there for these children,” Whitesell said.
Like debates the past three years, all sides agree drug-dependent births have reached epidemic levels. And everyone argues that they’re on the side of protecting newborns.
But suggestions for how to help could hardly be more different. And laws have whipsawed.
“They don’t want to see this law as being punitive, but there’s really no other way to see it,” Glass said. “We really feel like this law jumped the gun. We are really going to be working hard to create a plan that could actually help women.”
She called the defeat of the meth expansion the first step toward “turning the tide.” She wants experts involved, she said, to put Tennessee back on track as a national leader for addressing babies born dependent on drugs.
Meth child custody cases
Fewer children are being taken into state custody because of meth use in homes. The state Department of Children’s Services found meth as at least a contributing factor in 186 custody placements last year. Here’s how many meth-related child custody cases the state has counted the past four years:
- 2011: 330
- 2012: 265
- 2013: 266
- 2014: 186
Source: Tennessee Department of Children’s Services
Rapid rise of infant drug dependency
Tennessee is again on pace to count a record number of babies born dependent on drugs in 2015. The state began requiring hospitals to count cases of neonatal abstinence syndrome in 2013 after finding a tenfold increase in such births in a decade. There were 188 cases logged in the first 12 weeks of this year, ahead of the pace the past two years.