Update on law that allows for prosecution of women who give birth to drug-dependent babies


SULLIVAN COUNTY, TN (WJHL) – A Tennessee law that’s the first of it’s kind aims to protect unborn children by prosecuting women for assault, who illegally use narcotics during pregnancy and give birth to a baby born drug-dependent.
“Babies can’t help themselves, and so someone’s gotta step in and do that,” 1st Judicial District Attorney Tony Clark told News Channel 11.

News Channel 11’s Kylie McGivern reveals the realities of how the controversial law is playing out 11 months after its implementation. The state requested that all district attorneys submit a breakdown of the number of cases each office prosecuted, and how many mothers charged entered a drug treatment program.

But the numbers, while important, only tell part of the story.

Lisa Tipton is the Executive Director of Families Free in Johnson City, a non-profit that works with mothers struggling to overcome addiction. She’s seen firsthand the disconnect of women’s journeys through the legal system under Tennessee’s new law, that reads,

“A woman can be charged with a misdemeanor if she illegally uses narcotics during pregnancy and if the baby is harmed as a result.” For example, Neonatal Abstinence Syndrome (NAS.)

“We are seeing such a variance. You may have one NAS occurrence where the mother has been taking Lortab that were not prescribed to her, and Xanax, and that case could take a whole different turn with legal ramifications…as a mother who may be on triple the amount of medication but has an active prescription,” Tipton said.

“They’re scared, they don’t know what the ramifications really are gonna be. We’ve had women who have stayed at home, given birth to baby at home, only to be brought to the ER later and diagnosed with NAS,” Family’s Free Women’s Coordinator Judy Clark said.

It’s a disturbing reality, a side effect to a law many are still working to interpret.

“It’s not a one size fits all approach to these cases,” Sullivan County District Attorney General Barry Staubus said.

Staubus told News Channel 11 factors his office takes into account before prosecuting a case include: whether the mother had other children born with NAS, the type of drugs and effect on the baby, and the mother’s criminal history, attitude, and willingness to get into treatment.

Clark walks alongside many mothers from the time their babies are taken to the NICU.

“You see the shame, you see the guilt, you see the brokenness, they’re at the best spot possible to be able to reach ’em. To be able to help ’em,” Clark said.

But Tony Clark says unfortunately, not all mothers want the help – even when faced with jail time.

“If you’d rather have probation and have a conviction than help yourself and help maybe the next child that you have, I don’t have any sympathy for them at all,” the DA said.

“The same punishment for shoplifting is what you could have if your baby is severely addicted to drugs and spends six weeks in the neonatal care system. Doesn’t seem quite fair,” Staubus said.

“If jail was enough for addicts to stop using, our jails would probably be empty,” Clark said.

Under the new law, the 1st Judicial District Attorney’s Office (Washington, Carter, Unicoi and Johnson counties) charged 10 women from April 24, 2014 through December 31, 2014.

“Only two were convicted that chose not to go into some type of treatment program,” Clark said.

Sullivan County prosecuted 8 of the 115 cases it was asked to review.

The 3rd Judicial District (greene, Hamblen, Hancock and Hawkins counties) has not yet received any cases for prosecution under the new law.

Nearly a year into the law’s implementation, I asked district attorneys what they see as the biggest pitfalls.

“There’s a loophole,” Staubus said. “The law outlaws narcotics. Meth is not included. I think that hole needs to be filled.”

“I don’t know how that was left out, but it was,” Clark said. “Tennessee is second in the nation in meth labs and meth usage, and Upper East Tennessee is leading the state.”

Despite the law, NAS numbers continue to climb.

“Last year, there were close to 1,000 – 973 babies in Tennessee that were born,” Clark said. “We lead the nation.”

“We can’t just stand and do nothing,” Staubus said. He wants the law to be the something that makes a difference.

“I hope that they don’t repeal it, I hope that they make changes that can make it better,” Staubus told News Channel 11.

The future of the law is uncertain. Because it’s what’s called a sunset law, the state can decide to either keep it on the books, make changes, or repeal it altogether. The law will remain in effect as is until April 2016.

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