Under a law recently passed by the Tennessee legislature, women may face prosecution for assault or criminal homicide if their drug use during pregnancy is believed to have harmed or killed their children. All Our Lives is calling on the governor of Tennessee to veto the bill. Although we share Tennessee lawmakers’ concern for the lives and health of children, we disagree that these laws are the best way — or even an effective way — to protect fetal and newborn life.

Determining the effects of maternal drug use on the developing child is not simple or straightforward. Mothers who struggle with drug addiction often face many other challenges. Their children may suffer adverse health effects of maternal poverty and stress, unhealthy environments, unplanned or poorly timed pregnancy, and lack of prenatal care. It can be difficult to separate these effects from any harms directly resulting from drug use. But even in those cases in which the link between a mother’s drug use and harm to her child is clear, the question remains: How does sending her to prison help her child, or any other child?

Punishment doesn’t heal. And as we’ve seen through decades of the drug war, the possibility of punishment isn’t much of a deterrent to drug use.

In 2011, the American College of Obstetricians and Gynecologists issued a statement titled “Substance abuse reporting and pregnancy: the role of the obstetrician–gynecologist.” They reported the following:

  • Incarceration and the threat of incarceration have not reduced the incidence of alcohol or drug abuse.
  • The fear of being reported to the police causes patients to avoid or distrust doctors. This can mean they don’t get adequate prenatal care, which leads to worse health outcomes for both mother and child.
  • It is often the case that pregnant women struggling with addiction have sought care. Unfortunately, many couldn’t get into a treatment program that serves pregnant women, couldn’t afford treatment, or found that available programs failed to accommodate their family and work lives.

All of this is the exact opposite of what people who are concerned about the lives and health of children should want. We’re also concerned that a pregnant woman struggling with addiction might see abortion as her only realistic way of avoiding criminal prosecution.

In our view, the most pro-life thing a society can do is to ensure that pregnant women have all the resources they need to care for themselves and their children. In the case of women who are addicted to drugs, that would include immediate access to affordable, high quality drug treatment programs.

SB1391 has a good intent behind it, but good intent does not guarantee good effect. And we fear that the effect of this law will be to discourage vulnerable women from seeking care that would benefit themselves and their babies, and even to provide an incentive for abortion. That doesn’t foster life.

RHRealityCheck has put up a petition to Governor Haslam. We know that there are a lot of pro-lifers who wouldn’t be comfortable signing a petition run by RHRealityCheck, so if you’d prefer to call the governor’s office directly, the number is (615) 741-2001.

The organization Liberty Counsel has its own amicus brief in support of Alabama’s drive to criminally prosecute pregnant women who use substances.

Why? On the grounds that the unborn child is a full-fledged human being.

Liberty Counsel amasses historical evidence that the law has treated unborn children as human beings like any other.

But its brief does nothing to assess whether in the real world, the criminal prosecutions in Alabama actually foster the treatment of unborn children–not to mention their mothers!–as full-fledged human beings.

Liberty Counsel thus takes an enormous and unwarranted leap from the claim of fetal humanity to a position that *threatens* fetal and female lives, health, wellbeing, and rights.

Any such claim needs to have advocacy of robust, generous, nonpunitive assistance with abortion alternatives written right into it, or it has no validity whatsoever.

In the case of pregnant women who abuse substances and their fetuses, that means immediately accessible, free/affordable, specialized, high quality drug treatment programs.

Liberty Counsel mentions nothing of the sort in the brief, or anywhere else.

It also invokes nineteenth century physicians and academics who opposed abortion, without mentioning or discussing the fair amount of misogyny mixed into their views.

The brief does quote the antiabortion views of one feminist doctor, Mary Dixon Jones. But it omits her connections to the women’s rights movement.

It says nothing of early feminists’ consensus on abortion. They defined it as unjust prenatal lifetaking that could not be opposed without simultaneously and throughly challenging its root causes, such as the denial of women’s sex education and family planning rights, and the criminalization of single mothers as sex offenders.

Small wonder that All Our Lives got behind the opposing brief, not Liberty Counsel’s!