Tennessee Fetal Assault Bill Fails, Allowing It To Be Struck From State Law

Mar 22, 2016

A small but pivotal group of Tennessee representatives voted Tuesday to discontinue one of the state’s most divisive criminal laws. Known as “fetal assault,” the measure empowered prosecutors to arrest women who use heroin or pain pills during pregnancy, if their babies were born dependent.

Two years ago, in a rising epidemic of drug-dependent births, Tennessee became the only state to explicitly allow assault charges against new mothers for prenatal drug use.

The law came with a "sunset" provision that required that it either be renewed or discontinued this year.

Lengthy testimony has included doctors and criminal prosecutors, but the stories shared by addicted women helped convince East Tennessee Republican Rep. Andrew Farmer that the law isn’t helping.

“Both the young ladies that stood there made the comment that they were afraid to seek treatment, and that’s why they didn’t.”

Doctors, especially, argued the threat of arrest sends women into hiding. Other critics said addicts were choosing abortion over being found out and prosecuted.

Supporters of the criminal penalty tried last-minute amendments to answer these concerns. But the bill failed on a tie 3-3 vote in the House Criminal Justice Subcommittee.

That leaves the power to prosecute for fetal assault on track to be taken out of state law by July.

Amendments Had Support

Before the vote, the group attached an amendment that sought to limit who could be charged. As written by Rep. William Lamberth, a former prosecutor, arrests would have been triggered only if babies tested positive for illegal drugs within seven days of birth. He said that would more specifically target women who used drugs shortly before going into labor — and not women who abused drugs earlier in the pregnancy.

“This is for a one-time specific incident, right before the end of a pregnancy,” he said, “a willful act right before the child is born.”

With the bill’s sunset looming, lead sponsor Terri Lynn Weaver, R-Lancaster, attempted to describe the impact of prosecutions in the past two years.

“I would submit to you that there’s still not enough hardcore evidence to determine the merits of this bill, other than the testimonies that we’ve had … that this is actually working,” she said. “I’d really hate to see us throw the baby out with the bath water — lack of a terrible term — but on something that’s working for some women.”

The state Department of Health has closely tracked incidences of drug-dependent newborns — numbers that show no slowing of the epidemic.