It is now a crime to use drugs if you are pregnant in Tennessee.
A law signed by Republican Gov. Bill Haslam in April explicitly criminalizing drug abuse while pregnant is the first of its kind in the nation. It was spurred by the skyrocketing number of babies born to women who are abusing heroin or powerful prescription drugs, all part of what many are calling a national epidemic of opiate abuse.
The law, which charges a woman with a misdemeanor if she is found to be using drugs, will remain in effect until July 1, 2016. But that law, the way other states apply existing statutes and a recent court case have opened up a fissure between states and the Obama administration on how to best tackle the growing issue of opiate abuse.
For the past few years, neonatal intensive care units nationwide have been caring for a massive influx of babies born to mothers who abuse opiates. A 2012 study in the Journal of the American Medical Association showed that about 13,500 babies each year - the equivalent of one an hour - are born to mothers who are addicted to opiates. The babies are born dependent on the drugs passed to them through the placenta and must stay in the hospital for weeks while they are weaned off them. The infants may have stiff limbs, diarrhea, seizures, cry excessively, have a fever and other problems while they are withdrawing from the drug.
The problem is particularly acute in Tennessee. In 2013, 921 newborns were born dependent on drugs their mothers used while pregnant; as of June 21 there were 440 cases reported in 2014.
The Tennessee law -- along with a recent court ruling in Alabama that pregnant women can be prosecuted under a law stating they chemically endangered a child and a number of state laws that deem using an illegal drug during pregnancy to be child abuse -- are at odds with the Obama administration's push toward treating, not punishing, low-level, non-violent drug users.
"It doesn’t seem to serve anyone well to attach criminal penalties to people who have addiction disorders, particularly pregnant women," Michael Botticelli, acting director of the White House Office of National Drug Control Policy, said in an interview.
The Obama administration has made a priority of getting low-level drug offenders into treatment instead of sending them to jail or prison. Attorney General Eric Holder in March called for reduced sentences for low-level drug offenders. The Affordable Care Act will expand coverage for treatment and the Office of Drug Control Policy has worked to expand early intervention programs.
"We obviously have to work in concert with law enforcement, but fundamentally this is a public health issue," Botticelli said.
Botticelli visited a neonatal intensive care unit in Nashville days before Haslam signed the law. Botticelli told doctors and nurses that addiction should not be criminalized.
Terri Lynn Weaver, the Tennessee state representative who sponsored the bill, said it targets women who are "the worst of the worst."
"These ladies are not those who would consider going to prenatal care. These are ladies who are strung out on heroin and cocaine and their only next decision is how to get their next fix," she said, according to a report in the Tennessean. Weaver, a Republican, said she sponsored the legislation because "these defenseless children deserve some protection and these babies need a voice." Weaver did not return calls for comment.
Advocates for treatment worry that the Tennessee law could essentially reverse the state's Safe Harbor Act, which gave addicted pregnant women priority placement in the state's few, crowded treatment centers. The law also protects the parental rights of women who are addicted to drugs and seek treatment.
Others are concerned that the Tennessee law and other punitive measures aimed at pregnant addicts nationwide could drive women away from seeking prenatal care because they are afraid that they will be arrested or charged with child abuse. Tennessee is one of a number of states that tracks the number of pregnant women who test positive for opiates during pregnancy.
Many states set up the monitoring systems to quantify, and potentially help reverse, the problem. Botticelli praised Tennessee's data-based approach to tackling the problem and its focus on doctors who prescribe opiate medication to addicted women. According to the Guttmacher Institute, a non-profit reproductive health group, 18 states have created or fund treatment programs for pregnant women who are addicted to drugs and 10 states provide priority access to pregnant women.
There are 18 states that consider substance abuse during pregnancy to be child abuse. Minnesota, South Dakota and Wisconsin consider using drugs while pregnant to be grounds for civil commitment.
Fifteen states require medical professionals to report suspected drug abuse during pregnancy.
The American Medical Association opposes laws that criminalize drug use during pregnancy or make it a form of child abuse. The American College of Obstetricians and Gynecologists said such laws and policies often have the unintended consequence of driving pregnant women into the shadows.
"If you look at state policy," said Elizabeth Nash, state issues manager at the Guttmacher Institute, "you see a very conflicted country. You see some places where they’re reaching out, trying to provide the public health supports that women need and in other places they’re enacting laws that really disadvantage women in the sense that a women’s children might be taken away."
A provision was inserted into the Tennessee law that will, essentially, drop the charges if a woman enters treatment while pregnant and completes it after giving birth, a process that can take years. A spokesman for Haslam said pregnant women currently in treatment will not be charged.
Some remain skeptical. "It's a defense that has to be raised by a defendant at trial," said Farah Diaz-Tello, a staff attorney at National Advocates for Pregnant Women. "She has to be arrested to raise that defense."
The medically accepted form of treatment for opiate addiction involves a person being prescribed a dose of methadone or buprenorphine, both opiates. A doctor monitors a patient to keep a level amount of drugs in his or her system to prevent withdrawal, and a person can wean off of them - in the case of a woman after she has given birth - under a doctor's supervision. Doctors said if a woman who is addicted to drugs quits cold turkey it can cause a miscarriage because of the stress withdrawal causes on the body.
About half of the babies born dependent on drugs in Tennessee in 2014 had mothers who were in treatment.
"The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs," a statement from Haslam's office said.