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Criminalizing harmful substance abuse during pregnancy: Is there a problem with that?

(Alex Lee/Reuters)

Tennessee this week became the first state to explicitly criminalize substance abuse during pregnancy, if it harmfully affects the child.

Under the law, signed this week by Gov. Bill Haslam (R), a pregnant woman can be charged with assault if a child is born addicted to or harmed by her illegal use of narcotics during pregnancy.

Advocacy groups have long criticized the measure arguing it will force substance-abusing women to avoid getting prenatal care altogether for fear of prosecution.

“Mothers struggling with drug addiction in Shelby County, rural communities throughout Tennessee and poor mothers and their families will be the ones who suffer the effects of this dangerous legislation the most,” Cherisse A. Scott, founder reproductive rights organization SisterReach, said in a statement.

Although policies pursuing legal action against pregnant substance abusers are well-intentioned, they often have negative results, the American College of Obstetricians and Gynecologists says.

“Studies indicate that prenatal care greatly reduces the negative effects of substance abuse during pregnancy, including decreased risks of low birth weight and prematurity,” ACOG said in a published opinion on the issue. “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus.” The American Medical Association also opposes legislation criminalizing maternal drug addiction.

Although he signed the Tennessee bill into law, Haslam did include a nod to critiques of the measure in his signing statement.

“I understand the concerns about this bill, and I will be monitoring the impact of the law through regular updates with the court system and health professionals,” the governor said in a statement, while noting that the law expires in two years, on the last day of June 2016.

While no state previously had explicitly criminalized drug use during pregnancy, many have policies classifying it as child abuse, according to an April 1 state policy brief from the Guttmacher Institute, a sexual and reproductive-health research organization.

In 17 states, drug use during pregnancy is considered child abuse. And in three of them — Minnesota, South Dakota and Wisconsin — it is grounds for civil commitment (e.g. forced enrollment in treatment programs). In 15 states, health-care providers are required to report suspected abuse and, in four of those states, they are then also required to test for drug exposure of the child. Eighteen states have treatment programs targeted at pregnant women.