Tennessee’s Pregnancy Criminalization Law Will Hit Black Women the Hardest

SB 1391 may not target Black women specifically, but history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.

Texas' penal code explicitly exempts pregnant individuals from being punished for harming their own fetuses. But that hasn't stopped prosecutors from charging them with "reckless child endangerment" for using drugs while pregnant. Woman arrested via Shutterstock

Read more of our coverage on the Tennessee pregnancy criminalization law here.

In Tennessee, pregnant Black women have much to fear as a bill that would subject them to disproportionately higher rates of incarceration and detention sits on Gov. Bill Haslam’s desk, awaiting his signature.

The bill, SB 1391, would impose criminal penalties on mothers of newborns who have been exposed to addictive illegal or prescription drugs in utero. While the bill appears race-neutral, prosecutors and judges will wield the law against Black women more so than white women, based on a long tradition of deeply embedded racial stereotypes about Black motherhood. Should Gov. Haslam ignore the growing outcry against SB 1391 from pro-choice and anti-choice advocates alike, the law would likely lead to Black women being thrown in jail for up to 15 years for aggravated assault should they choose to carry a pregnancy to term while struggling with an addiction to illegal narcotics.

SB 1391 is an attempt by the Tennessee legislature to reduce the number of children born with neonatal abstinence syndrome, a group of problems that occur in newborns who are exposed to addictive illegal or prescription drugs in utero. Current law in Tennessee prevents pregnant women from being prosecuted for a newborn child’s addiction or birth defect resulting from drug use during pregnancy. Indeed, just last year, Gov. Haslam signed into law the Safe Harbor Act, a law meant to help drug-addicted pregnant women get treatment and prenatal care so they can beat their addictions, give birth to healthy newborns, and retain their parental rights. SB 1391 would change that by criminalizing women who suffer from drug addiction. And given the stereotypes that pervade about Black motherhood, that change will hurt Black women the most.

Stereotypes about Black women—that they are promiscuous, that they procreate irresponsibly, that they are unfit for motherhood—are perpetuated by a media that routinely presents disparaging images and narratives about Black motherhood while rarely, if ever, presenting positive views. They are rooted in a historical assault on Black women that began during slavery and continues today, and they contribute to what Professor Dorothy E. Roberts calls in her seminal book, Killing the Black Body, “the degradation of Black motherhood.” This degradation leads to social policies that punish Black women for their reproductive choices while simultaneously eschewing any responsibility for societal forces that create the hostile birthing environment that far too many Black women find themselves in.

The media’s obsession with so-called crack babies is a perfect example. In the 1980s, the media was saturated with tales of “crack babies,” babies born to Black women who were defective from birth and, according to widespread media reports, destined to fail as soon as they exited the birth canal. At the time, an explosion of medical research into crack-exposed newborns suggested that these babies would suffer long-term medical, developmental, and behavioral problems, problems that could never be fixed and that stemmed exclusively from the poor choices that pregnant Black women made. Media reports portrayed pregnant Black women as entirely lacking in any maternal instinct—drug-addled women whose concern was primarily for their next fix, and not for their children.

Notably, the concern during the “crack baby” hysteria was not for the mothers who were addicted to drugs and in need of help so that they could beat their addictions, carry their pregnancies to term, and give birth to healthy babies, but rather on the ways in which the so-called crack babies themselves were a drain on society and taxpayer dollars. Rather than eliciting sympathy, the ways in which, for example, children born with Down syndrome or other genetic anomalies do, “crack babies” were viewed with disdain.

It wasn’t until 30 years later that the “crack baby” myth was debunked. It turns out that poverty, more so than drug use, is a key factor in determining how well so-called crack babies succeed later in life, according to a long-term study on the affects of in utero cocaine exposure on children. Of course by the time these sorts of long-term studies were completed, the stereotypes that had proliferated during the 1980s and ’90s were implacable and the incarceration of drug-addicted pregnant women had become the only solution to a problem that society viewed as endemic in the Black community.

In South Carolina, for example, under a state-sanctioned mandatory drug-testing program, prosecutors arrested and charged drug-addicted Black women for child abuse and neglect at a rate that was far higher than that of white women; 41 of the 42 women arrested under South Carolina’s program were Black. In Florida, a study suggested that Black women were ten times more likely than white women to be reported to authorities, even though the rate of substance abuse between the two groups is about the same. And according to a study conducted in 2001, of the 200 pregnant women or mothers who were arrested and charged with crimes related to illegal drug use during pregnancy, 80 percent were Black or Latina. This is so even though a study conducted by the National Institute on Drug Abuse suggests that most women who use illegal drugs while pregnant are white.

Why the disconnect? Chalk it up to pernicious stereotypes about Black motherhood, which take root in the American consciousness and lead to prosecutors and judges tasked with upholding laws like SB 1391 to apply the laws in discriminatory ways.

Certainly SB 1391 does not target Black women specifically, just as none of the laws that were enacted in states across the country in the wake of the “crack baby” media hysteria did. However, history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.

This sort of disparate impact is to be expected should Gov. Haslam sign SB 1391 into law. In an interview with Lauren Rankin for Cosmopolitan, Farah Diaz-Tello, a staff attorney at the National Advocates for Pregnant Women, makes the point: “I can almost guarantee that this [law] will be used disproportionately against African-American women because, even though we know that fewer African-American women than white women use drugs, they are more likely to be blamed for the outcomes of their pregnancies.”