‘Fetal assault bill’ may lead to more drug treatment funding for pregnant women

An impassioned and unresolved controversy over whether to continue criminal prosecution of women who give birth to drug-addicted babies has birthed a bipartisan and unanimous committee crusade to spend more state money on treatment for addiction.

All members of the state House Criminal Justice Subcommittee, where the opposing sides argued emotionally and at length about the “fetal assault bill” last week, signed on afterward to a proposed state budget amendment that would provide $10 million in new funding “for the sole purpose of drug addiction treatment services for pregnant women and newborn babies with neonatal abstinence syndrome.”

The bill, HB1660, appeared on the verge of defeat after a Sevier County judge who presides over a drug court joined others in telling legislators that a two-year experiment in authorizing prosecution of addicted mothers has been a failure.

The others included a Blount County mother who is among about 100 women prosecuted under the law — she drew applause after testifying, with legislators joining in a technical violation of legislative rules — as well as a doctor specializing in neonatal abstinence syndrome, or NAS, and people involved in addiction treatment.

Legislators in 2014 made Tennessee the first state in the nation to enact such a statute, deeming illegal use of drugs just prior to birth a misdemeanor assault on the fetus — thus the “fetal assault” label. But included in 2014 was an automatic repeal on July 1, 2016, unless renewed by the General Assembly.

Rep. Terri Lynn Weaver, R-Lancaster, who sponsored the 2014 law as well as the bill this year to keep it on the books permanently, joined the committee members in signing as a co-sponsor of the $10 million drug treatment budget amendment, drafted by Rep. William Lamberth, R-Cottontown, a former prosecutor who staunchly supports the measure.

House Democratic Caucus Chairman Mike Stewart of Nashville, a staunch opponent of renewal, pushed for an immediate vote on Weaver’s bill after testimony ended. The subcommittee chairman, Rep. Andrew Farmer, R-Sevierville, had indicated he could not support renewal after the testimony and another member, Rep. Micah Van Huss, R-Gray, said he could not support it either “because of the abortion issue” — referring to contentions the law has led pregnant women to seek abortions rather than face the possibility of criminal prosecution.

But Lamberth called for a week’s delay in the vote, proposing to do two things in the interim — draft the budget amendment and rewrite the bill to ease concerns over abortion. After some back-and-forth dispute, Stewart agreed to the postponement. By Friday, Lamberth had fulfilled both his promises, providing copies of the budget amendment — with Stewart among the co-signers — and a rewrite of the bill itself.

The revised bill, scheduled for consideration Tuesday, includes a provision declaring “no woman shall be prosecuted under this subsection for use of a narcotic drug that occurred before the 25th week of the woman’s pregnancy.” Since Tennessee law prohibits abortion after the 25th week of pregnancy, Lamberth said, the effect is to eliminate any incentive to choose abortion.

Last week’s hearing began with Weaver showing a video of crying, convulsing infants suffering from NAS that Farmer called “heart-rending.” A narrator explains that the babies, withdrawing from addictive drugs their mothers had taken, cannot sleep for more than 15-20 minutes at a time and vomit any nourishment consumed.

Weaver said the fetal abuse law is a tool used as a “velvet hammer” to prod women into seeking help for their addictions. Keeping the law on the books, she said, will be “giving a voice to these tiny, innocent babies.”

Two leaders of Life Choices, a Memphis-based organization that helps women deal with unexpected pregnancy, and Shelby County District Attorney General Amy Weirich testified in support of renewal.

The Life Choices representatives said the law has often led women to seek help, and Weirich said the law is used only to prosecute “the worst of the worst” cases, where women have refused treatment and given birth to a child suffering addiction.

Duane Slone, a Circuit Court judge who oversees drug court programs in Sevier, Cocke and Grainger counties, sought to counter their testimony. He began by saying he did not have a video to match Weaver’s presentation, but held up a picture and declared, “I do have a photograph of a young guy who spent his first 52 days on earth withdrawing from opiates, barbiturates, cocaine and about anything else you can imagine … and that’s my 5-year-old son, Joseph. … When I see the heart of people like General Weirich and Rep. Weaver, there’s compassion there and I admire where they’re coming from. Our heart beats the same that way. But I disagree with approval of this legislation.”

He said statistics make two main points about the law’s shortcomings:

Northeast Tennessee had 52 percent of NAS births statewide in a recent year, almost all based on abuse of prescription opioid drugs, he said, and not heroin or cocaine as often cited by advocates of the fetal assault legislation. Shelby County had just 2.1 percent of NAS cases and Davidson County just 4 percent, he said, while Knox County had 11.6 percent. Slone’s district had 28 percent.

While the urban counties have treatment centers in place, typically funded mostly by private donations, the rural counties do not, he said. A pilot program in Sevier County partly funded by the county and including a contraception program, he said, provides shelter for five women at a time and has been successful, perhaps preventing more than 40 NAS births — but there is a far larger demand.

East Tennessee Children’s Hospital in Knoxville has found the number of NAS newborns at the facility has remained stable since passage of the 2014 law, although far fewer of the mothers had sought prenatal care. Slone said the “drastic” decline in women seeking prenatal care shows women are being discouraged from looking after the welfare of their babies. The judge and a spokesman for the hospital did not return a reporter’s calls seeking specifics of the data on Friday.

Brittany Nicole Hudson of Maryville, who pleaded guilty to violation of the current law after giving birth to a baby girl on the side of a road in October 2014, told the committee she had heard of the statute and was “scared” about seeking prenatal care — although she had done so prior to birth of a previous child when there was no such law.

“I did not get clean because of this law,” Hudson said, noting she is now “clean” — thanks to many people who have helped her — and is working at a treatment center, where she knows of other women fearful of prosecution.

On the other hand, Latoni Lester of Memphis, who was also charged with violation of the law and who also said she has since gone through successful treatment, told the committee she supports the law. But Lester also said in response to questions that she knew about the law, but nonetheless took cocaine the night before her daughter was born.

Dr. Steven Patrick, a Vanderbilt University professor of pediatrics who is also engaged in research on NAS for the National Institute of Health, said the situation should be treated as a “public health problem, not a criminal justice problem.” The American Medical Association and virtually all physician-oriented and research organizations, he said, oppose the law now.

Patrick said the law discourages mothers “from being forthcoming” and seeking help they need. He also said the law ignores alcohol abuse by expectant mothers, a far more common problem — although drug addiction is growing, mostly because of illegal use of opioid prescription drugs.

Mary-Linden Salter, executive director of the Tennessee Association of Alcohol, Drug & Other Addiction Services, told the committee that up to 1,000 pregnant women apparently are on waiting lists for drug treatment at any given time, since only a handful of facilities offer treatment for pregnant women — and some of those require private payment. Salter contended the current law discourages addicted women from seeking treatment and, when they do, none is available.

Gov. Bill Haslam has proposed an expansion in drug court funding in his proposed budget for the coming year, Salter said, but that covers only the administrative costs of operating the courts and does not provide anything for treatment expenses typically involved in referrals by drug courts. Slone cited similar concerns.

Salter said her organization and others involved in addiction treatment are seeking a $30 million expansion in state funding for such programs. Lamberth said he believes the legislator-supported $10 million measure has a better chance of winning approval.

In an exchange with Patrick, Lamberth expressed exasperation at one point after repeatedly declaring sympathy for addicted women trying to cope with their problem. The legislator asked the doctor whether he thinks it should be a crime for a mother to put an illegal drug into infant formula given her baby and, if so, why it should be any different to put an illegal drug into her body prior to giving birth.

Patrick said as to drugs in baby formula, “the answer is obvious.” He avoided a direct answer to the second part of the question, but called the issue “a complicated problem” that warrants “a complicated approach” in response, including treatment not now available in many cases to addicted mothers.