Pregnancy and Addiction: Should the State Mandate Treatment?

Darienne Dykes smiled as she thought about her 5-month old son, Phoenix. "He's everything to me," says the 21-year-old Nashville resident. "Being a mother is just the most amazing experience." Wiping tears from her eyes, she continued, "I definitely regret continuing to use drugs during my pregnancy."

In continuing to use drugs during pregnancy, Dykes is not alone. The number one cause of death in Tennessee is drug overdose, surpassing the number of vehicle accidents fatalities in 2013. And pregnant women aren't immune from addiction: approximately 900 babies were born with Neonatal Abstinence Syndrome (NAS) in the state last year, a ten-fold increase from a decade ago. NAS is caused when mothers continue their opiate or narcotic drug use through pregnancy; babies can usually be weened off the drug within a few weeks after birth and there are no known long term effects.

However, Tennessee officials have declared NAS an "epidemic" and took action this past July with the implementation of Public Chapter 820. The law makes it possible for a woman to be charged with assault for the use of a narcotic drug while pregnant if her child is born harmed by the drug. An assault conviction is punishable by a fine and anywhere from one to 15 years in prison. So far, around 9 women have been charged under this law. The law has been controversial, with opponents saying it's counter-productive to put a drug-addicted mother in jail.

Shelby County District Attorney Amy Weirich, a strong proponent of the law, says the law does not intend to lock up these women. Instead, she believes the law is more like state-sponsored "motivation" to seek treatment.

"What we hope to do is to get these women help for their addiction," says Weirich, explaining that the women have the choice to go through drug court and complete rehabilitation instead of being processed through the regular criminal justice system. Once treatment is successfully completed, says Weirich, the charges would be expunged from their record.

However, a 2005 GAO report concluded that up to 70 percent of all drug court participants do not complete the treatment programs—and if the program is not completed, then jail time is the consquence.

Weirich and the co-sponsor of the bill, state representative Mike Carter, expressed concern for the newborn babies and a desire to help the addicted mothers. However, Thomas Castelli of Tennessee's American Civil Liberties Union, says threatening these mothers with the criminal justice system doesn't help when there's not enough drug treatment facilities to begin with. There are only 19 facilities in the entire state that offer rehabilitative care to pregnant women, and these are mostly centered in populated areas, leaving rural women with the burden of driving long distances to attend treatment. For many of these lower-income, single mothers this is logistically difficult. And there are only two facilities in the state that offer prenatal care and allow a woman's pre-existing children to accompany her to treatment–another logistical necessity for many of these women. This shortage in treatment facilities has resulted in long waitlists ranging from a few weeks to a few months. Due to the new law, this waitlist can mean the difference between freedom and imprisonment for a preganant woman.

Furthermore, Dr. Jessica Young, leading doctor at Vanderbilt's Drug Dependency Clinic for pregnant women, says the new law will encourage women not to seek prenatal care for fear of being arrested. Weirich disagrees, saying the law explicitly says the babies have to be birthed before legal action takes place and "we're not talking about police sweeping into OBGYN offices and arresting women who have a hot urine screen when they go in for their six month prenatal check-up."

But Young counters, telling CNN, "Pregnancy is often a really motivating time for these women to get their lives turned around, so we really have a critical time to work with them. This is a population of women who are already scared. They’re already very distrustful in general of authority and the medical establishment and it takes a long time for them to build up trust. So this bill will make that harder."

Castelli argues that the law not only will prove to be counterproductive but is unconstitutional. "It violates the 8th amendment. The Supreme Court back in 1962 determined that it would be cruel and unusual to punish people for having a status or having an illness," he says. The case, Robinson v. California, concluded that the state's law which criminalized being a drug addict was unconstitutional. Castelli argues that this law does the same thing.

Produced by Amanda Winkler. Narrated by Alexis Garcia. Additional help by Zach Weissmueller.

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