Will Tennessee legalize the New Jane Crow?

April 23, 2014

Rachel Cohen explains the ugly implications of anti-choice legislation in Tennessee.

THE STATE of Tennessee is about to establish a dangerous new precedent in the war on women.

Both houses of the state legislature recently passed SB 1391, a bill that would sanction women's arrest and incarceration on the basis of the outcomes of their pregnancies. If Gov. Bill Haslam does not veto the measure, it would be the first law in the U.S. to criminalize pregnant women for the use of illegal or prescription drugs.

Supporters of reproductive rights are trying to pressure Haslam into stopping SB 1391 from becoming law.

Since the 1973 Roe v. Wade Supreme Court decision that legalized abortion, hundreds of pregnant women have suffered unwanted medical interventions, arrests and incarcerations, based on a range of flimsy assertions about the health of their pregnancies--very often without legal or medical grounding for the claim that the women were responsible for harming a fetus or newborn.

National Advocates for Pregnant Women (NAPW) compiled a groundbreaking report showing how these cases amount to what NAPW Executive Director Lynn Paltrow has termed the "New Jane Crow"--a reference to author Michelle Alexander's best-selling book on racism and mass incarceration, The New Jim Crow.

Tennessee state Rep. Terri Lynn Weaver, the sponsor of SB 1391
Tennessee state Rep. Terri Lynn Weaver, the sponsor of SB 1391 (Michael Rivera)

According to NAPW lawyer Farah Diaz-Tello, Tennessee's law would be the first law to codify a special category of crime that only women could commit--a violation of the constitution, Diaz-Tello says.

SB 1391 grants wide latitude to cops and courts to pursue charges against women, ranging from misdemeanors to felony aggravated assault, including for activities that aren't illegal for people who aren't pregnant, like taking a prescription narcotic. Maximum penalties under the bill could be as great as 15 years in prison.

TENNESSEE RECENTLY began tracking the incidence of neonatal abstinence syndrome, a set of medical conditions found in newborn infants exposed to addictive substances before birth. This data was then spun to create the impression of a sudden increase in drug-exposed pregnancies.

But criminalizing the outcomes of pregnancies serves no medical purpose. On the contrary, medical experts recognize that: a) criminalization creates an obstacle to accessing resources to withdraw from addictive substances; and b) neonatal abstinence syndrome is treatable, particularly through close contact with the infant's mother. The NAPW report shows that in many cases, incarceration interrupts adequate prenatal care, as well as proper treatment of neonatal abstinence syndrome.

Medical studies have begun to debunk the most sensational stereotypes surrounding infants born to crack-addicted parents.

Despite the decades of claims that so-called "crack babies" are physically, mentally and emotionally damaged, doomed to be future criminals and drains on the welfare system, medical researchers have found no discernable pattern of harm to people exposed to crack cocaine in the womb. Instead, studies found that exposure to poverty resulted in a more pronounced pattern of disadvantages.

Not surprisingly, the majority of pregnant women who are targeted for behavior deemed risky to their pregnancies are also low-income. Under the Tennessee proposal, those who seek access to substance-abuse treatment would be doubly vulnerable--first, they would be exposed to arrest by seeking help, and second, they would not have access to the legal means to challenge any charges made against them.

Tennessee passed a Safe Harbor Act last year that protected pregnant women from punishment for drug use during pregnancy if they completed a treatment program. Women ensnared by law enforcement under SB 1391 if it becomes law could still use this defense. But they would need legal representation capable of proving they had completed such a program--something that Diaz-Tello believes will be out of reach for many.

AS IN the example of the moral panic surrounding "crack babies," most victims of the New Jane Crow are women of color. In particular, Black women have endured a variety of efforts to demean their rights and ability to bear and parent children--something that Dorothy Roberts examines in her book Killing the Black Body.

This history is certain to come into play in Tennessee if SB 1391 becomes law, writes Imani Gandy, a legal analyst for RH Reality Check: "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."

Farah Diaz-Tello agreed in a comment to Cosmopolitan: "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."

That prejudice was evident in the case of Rennie Gibbs, a Black teenager in Mississippi who suffered a still birth that prosecutors attempted to blame on drug use. The charges relied on "expert" speculation that trace amounts of a cocaine byproduct caused the death--provided by a medical examiner, Steven Hayne, notorious for his dubious testimony in court cases where convictions were later overturned.

Earlier this month, a Mississippi judge threw out the charges against Gibbs--but prosecutors say they will attempt to try the case again in August.

Monica Simpson, executive director of SisterSong, a women of color reproductive justice coalition, said the Tennessee bill is part of a larger trend of "over-policing and over-criminalizing of Black mothers" that is also leading to rising rates of incarceration. In a press briefing, Simpson called the Tennessee bill harmful and shaming, and connected it to the rising rates of Black mothers losing custody. According to Simpson, the majority of women in prison for nonviolent drug offenses had been primary care-takers for children before being incarcerated.

NAPW AND other supporters of women's rights would likely challenge the constitutionality of SB 1391 in court, if Haslam allows it to pass. But even if they are successful, such legislation will have already done damage.

For one, the bill contributes to the wider attack on abortion rights and birth control--because it treats fetuses as people. Even if drug use measurably harmed a fetus, to charge a pregnant woman with assault for causing this harm implies that the fetus she carries is a fully independent, legal person, with separate rights.

Laws to formalize fetal personhood have been debated in statehouses and put to popular votes via referendum--and they have repeatedly failed to pass. Yet the atmosphere surrounding these bills encourages individual law enforcement personnel and medical professionals to view pregnant women with suspicion.

Meanwhile, fetal personhood provides a political reference point that helps drag the mainstream debate to the right, clearing the way for measures that chip away at the legal right to abortion.

The consequences of this rightward shift have been dire. Consider the situation in Texas, where mass protests inside and outside the state Capitol building disrupted, but failed to derail, passage of legislation that banned abortions after 20 weeks of pregnancy, among other provisions. Roe protects abortions up to roughly 24 to 28 weeks into pregnancy--but anti-choice politicians have been pushing in many states for 20-week bans, claiming, in defiance of medical evidence, that a fetus is capable of feeling pain at this point of development.

In Texas, the protests put pressure on Democratic legislators to oppose the anti-choice legislation, led by state Sen. Wendy Davis who filibustered Senate Bill 5 during the first special session of the legislature called by Texas Gov. Rick Perry.

Yet today, Davis--after announcing her candidacy for governor--says she would support a 20-week ban with slightly different wording.

In Tennessee, a coalition of advocacy groups tried to reach out to lawmakers of both parties while SB 1391 was still under consideration, but the effort failed to defeat the legislation. Now, reproductive rights groups are organizing a petition drive appealing for Haslam to stop SB 1391 from becoming law.

The right wing's interconnected efforts to curtail women's control over their own reproduction alongside the assault on Black pregnancy and motherhood follows a bitter historical pattern. It demonstrates the ugly cynicism behind the scapegoating of bad mothers, which is used to legitimize even deeper cuts to the schools, transit, health care, and public aid.

We need to unite to confront these attacks. Last spring, mass protests at the Texas Capitol building nearly stopped the anti-abortion bigots. Everywhere the right tests the waters for ever-more extreme incursions into our reproductive rights, they should face active, visible and vocal resistance.

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