Being Black and pregnant is dangerous, especially in states like Tennessee. State legislators recently enacted SB 1391, a pregnancy criminalization bill that allows the state to levy criminal penalties against mothers who have potentially exposed their fetuses to drugs. SB 1391 specifically states that “a woman may be prosecuted for assault for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.”

The Tennessee legislature introduced the law in an attempt to lower the number of children born with neonatal abstinence syndrome, but it will criminalize Black women and their newborns instead.

Pervasive beliefs about Black women and our ability to effectively mother will undoubtedly impact how Tennessee’s law is wielded, according to Imani Gandy, RH Reality Check’s senior legal analyst. In an article for the site, Gandy notes that culturally understanding Black women as irresponsible, promiscuous and inept cause laws like SB 1391 to be biased. She writes in part:

“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 Pregnancy Criminalization Law also targets Black women based on the idea that “crack babies” exist, even thought that terminology is incorrect. Farah Diaz-Tello, a staff attorney at National Advocates for Pregnant Women, told RH Reality Check that “babies cannot be born addicted to any substance.” She continued, “Addiction means a specific thing, it is a behavioral condition, and is distinct from dependency and simply experiencing withdrawal. You can’t say that they are addicted because they are not showing drug-seeking behavior.”

Major medical organizations – including the American Medical Association, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the American Public Health Association — agree with Diaz-Tello. The coalition of reproductive health organizations have proposed an alternative legislation, tentatively called “Healthcare Not Handcuffs.” It is designed to usher pregnant women into treatment facilities instead of prison cells. This approach is especially important for pregnant Black women, who are most likely to be drug tested following delivery, according to a 2007 research report in the Journal of Women’s Health. Researchers found that “Black women and their newborns were 1.5 times more likely to be tested for illicit drugs as non-Black women.” Given this predisposition to being tested, the medical community is concerned that fewer pregnant women will seek the necessary assistance needed to battle a drug-addiction.

Tennessee’s recent law is also in conflict with the state’s recent attempt to assist rather than punish pregnant women struggling with addiction. Tennessee Gov. Bill Haslam supported and signed the Safe Harbor Act, a bill designed to place addicted pregnant women into treatment centers that offer prenatal care without losing their parental rights.

The Pregnancy Criminalization law could also leave children without mothers. Tennessee’s law stipulates that pregnant women who test positive for illegal narcotics could be charged with aggravated assault and sentenced to up to 15 years in prison. Harsh sentencing guidelines like these could initiate an influx of newborns into a broken foster care system that often places Black children in violent, abusive and unproductive home environments.

All women should be concerned. The Tennessee legislature’s ability to pass such a draconian statute only contributes to a national attempt to control women’s reproductive health. But, as Diaz-Tello points out in an interview with Cosmopolitan, Black women are especially at risk. “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.”

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