Report: Criminalizing Pregnancy a ‘Noose Around Your Neck’

"These laws put pregnant women in a double bind, forcing them to choose between risking their health and risking punishment," said Carrie Eisert of Amnesty International.

Seventeen states, including Tennessee, have advanced measures this year to police pregnant people. Shutterstock

Fearing jail time for her untreated drug dependency, Brittany Hudson gave birth in a friend’s car on the side of a Tennessee road.

This was in 2014, shortly after Tennessee’s GOP-held legislature amended its “fetal assault” law to become the first state to explicitly make it a crime to bear a child with symptoms of prenatal narcotics exposure. Hudson was among the first pregnant people charged under the controversial law.

Hudson had sought drug-use treatment, which can cost upwards of $4,500 per year in Tennessee. But she encountered waiting lists and was turned away, she told the local station WBIR.

Untreated and fearing imprisonment, Hudson avoided doctors and skipped prenatal visits.

Laws like Tennessee’s were enacted under the guise of safeguarding maternal and infant health. But the law instead robs pregnant people of their human rights and much needed health care at a crucial time in their lives, according to a sweeping new report from Amnesty International.

The report released Tuesday is a deep dive into the policing of pregnancy in the United States. While focusing primarily on Tennessee’s “fetal assault” law and Alabama’s “chemical endangerment” law, the report finds “stark evidence of discrimination” in the application of laws and policies related to maternal and child health across the nation.

The result: pregnant people are denied their right to privacy, legal protections, and vital health care.

“Across the USA, the heavy-handed policing of pregnant women’s behavior is shattering patient trust in health services with devastating consequences,” Carrie Eisert, policy adviser at Amnesty International, said in a statement. “These laws put pregnant women in a double bind, forcing them to choose between risking their health and risking punishment.”

The report underscores the extent to which pregnant people remain at the crux of the battle over reproductive rights. It notes the overlap of pregnancy criminalization laws and abortion restrictions, as lawmakers and the courts increasingly push to consider a fetus a legally separate person while denying a pregnant person’s autonomy.

In the 2017 legislative session, states introduced more than 300 measures to restrict sexual and reproductive rights. Meanwhile, 17 states advanced measures to essentially police pregnant people, the report notes. In 38 states, “fetal assault” laws consider an embryo or fetus a potential crime victim, while 18 states consider substance use during pregnancy to be child abuse. Four states regard drug use during pregnancy as grounds for involuntary detention or civil commitment.

“The vague and overbroad nature of ‘pregnancy criminalization’ laws mean that almost any behavior perceived as harmful can be criminalized,” the report says. And while these laws ensnare pregnant people in routine activities—such as having a cesarean section or failing to wear a seat belt—Amnesty International found the primary victims are those least equipped to navigate the legal system.

“Like Putting a Noose Around Your Neck”

While there is no comprehensive data on the number of people charged with crimes related to pregnancy, the report found that the 100 women charged under Tennessee’s “fetal assault” law since 2014 were largely people of color and those with low incomes. Most of those charged were in Memphis, a city with a predominantly Black population, and in rural eastern Tennessee, an area with a severe shortage of drug treatment facilities.

“We’re also talking about women, particularly women of color affected by this law, who were already mothers and have no way of maintaining the life of their families,” said Cherisse A. Scott, founder and CEO of the the advocacy organization SisterReach in Memphis. “So if you are poor and struggle with addiction in Tennessee, you lose everything with no sound plan to ever get your life back. That’s what this law has done to Tennessee mothers and families.”

The report found the law has driven pregnant people to hide in the shadows, forgo health care, or seek it from another state.

“The threat of jail is like putting a noose around your neck. You’re just going to go on the run,” said one Tennessee woman, who lost custody of her child due to drug use.

The head of one North Carolina clinic told Amnesty International that about five Tennessee women had come to her facility for prenatal care in the space of a year. Zac Talbott, director of the East and Middle Tennessee Chapter of the National Alliance for Medication Assisted Recovery, recounted the story of a pregnant Tennessee woman who gave birth while en route to Georgia.

“She did not make it to the hospital in time and gave birth by herself in her car,” Talbott said. “Another woman, who was using prescription opioids off-label, decided to have an abortion. Fear that a rogue prosecutor could prosecute her was part of the decision.”

North Carolina’s Republican-held legislature, aiming to thwart pregnant people from evading Tennessee’s law, tried in 2015 to pass similar legislation, but was unsuccessful. And although Tennessee’s law sunset in July 2016, the state’s GOP-controlled legislature introduced a nearly identical bill this year.

“Bam, You’re Slapped With a ‘Chemical Endangerment’ Charge”

The report also concentrates on Alabama, where the state’s “chemical endangerment” law, passed in 2006 by the state’s Republican-majority legislature to protect children from exposure to environments in which drugs are being used, is being used to disproportionately target pregnant people. The Alabama Supreme Court and prosecutors have interpreted the law as applying to people using drugs during pregnancy.

Alabama, according to the report, has carried out the most prosecutions against pregnant women: 479 prosecutions between 2006 and 2015.

“In my town, I was worried about going to the doctor because if you test positive [for drugs], bam, you’re slapped with a ‘chemical endangerment’ charge,” one Alabama woman told Amnesty International.

Defending the law’s criminalization of pregnant people, Marchetta Shawl, an employee with Marshall County Court Referral services in Alabama, said, “Without it…you have no way to make them do what you want.”

Of the 479 cases, 89 percent of pregnant people were unable to afford their own lawyer, according to the report, noting the law targets pregnant people who frequently lack the resources to navigate the court system or child protection services.

“Laws like these are reinforcing stereotypes of low-income and marginalized women, effectively punishing them for their life circumstances,” Eisert said.

The report found violations of pregnant people’s legal and privacy rights, including cases where drug tests were administered simply because the individual was poor and therefore considered a “risk.” Some doctors admitted their biases influenced who they drug-tested, the report says. In some cases, pregnant people didn’t know they were being tested.

The director of a community corrections program in Alabama, explained the consent process for drug testing this way: “All hospitals have different rules …. It’s not a real system. We’re kind of random here.”

The report calls for a host of reforms, including a repeal of state laws that police pregnant people; for new guidelines to protect pregnant people from unauthorized drug tests; and for affordable, accessible treatment for drug dependency.

“Instead of policing women’s bodies, authorities should be ensuring pregnant women have access to the prenatal health care and drug treatment programs they are entitled to,” Eisert said.