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Editor's note:

A bill that would charge women with a crime if they use drugs while pregnant has not yet passed the House. The Senate approved SB 1391 Monday night, and lawmakers expect to discuss the House version of the bill (HB 1295) this week. Previous stories incorrectly reported that measure had already passed the House.

A year after a tense legislative battle, a proposal to allow Tennessee authorities to arrest women for damage done to their infants by drug use during pregnancy has moved closer to passage.

Women have been protected from prosecution sincestate lawmakers eliminated the criminal penalty two years ago. The state has moved toward emphasizing treatment over punishment.

But a push to reinstate criminal charges, framed around the growing number of cases identified by the state, has gained momentum this year.

Prior opposition has relaxed this year as state health and substance abuse agencies, along with leaders of children's hospitals, have helped modify the proposal. If passed, the law would allow women to be charged with misdemeanor assault if their infants are born drug-dependent. That's an increasing condition in Tennessee, rising from 56 cases in 2001, when reporting wasn't mandatory, to 855 in 2013, according to state data.

House Bill 1295 passed and the Senate version, SB 1391, could come up for a vote this week.

All sides have agreed that something must be done about babies born addicted — often to prescribed painkillers — who suffer from seizures, vomiting and hyperactivity in a condition known as neonatal abstinence syndrome.

How to reverse the trend has caused a debate pitting criminal punishments against incentives to get women into treatment.

"We don't know the answer on this," Mary Nell Bryan, president of the Children's Hospital Alliance of Tennessee, told lawmakers last week. "I think that district attorneys and children's hospitals and (lawmakers), all of us want to figure out how to stop this problem."

The hospital alliance "strongly opposed" an earlier version of the bill, but now supports it.

Safe Harbor Act

The legislature passed the Safe Harbor Act last year to give pregnant women incentives to get into treatment, including putting them at the front of the line for care and guaranteeing they won't lose custody of their newborns solely because of drug use.

The Department of Health has finished one year of collecting data on how many babies are born addicted. But it's too soon to draw conclusions, Valerie Nagoshiner, an assistant commissioner, said.

"We don't believe that Safe Harbor has been in effect long enough to have an impact just yet," she said.

But for some, patience has run out. Sullivan County District Attorney Barry Staubus said lives are on the line.

"We're drowning in East Tennessee and throughout Tennessee with these children," he said.

The proposal, like the Safe Harbor Act, provides that women who stick with addiction treatment cannot be charged. Most drug charges are related to the possession or sale of illegal substances, whereas new legislation seeks to penalize the harm done by earlier drug use.

"This bill balances deterrence with accountability and treatment," Staubus said.

The lone Senate Judiciary Committee vote against the bill came from Sen. Mike Bell, R-Riceville, who raised concerns about the availability of treatment programs in rural areas. The bill doesn't fund new recovery efforts or drug courts.

Bell briefly and unsuccessfully tried to amend the bill to explicitly protect women who don't have treatment programs nearby.

" 'Trust us, we're not going to prosecute,' … I don't know that's good enough for me," Bell said.

After advancing, the bill drew opposition Friday from the Healthy and Free Tennesseecoalition, which contends the threat of prosecution will drive women away from prenatal care and toward abortion to avoid arrest.

Anti-abortion advocates worked against the proposal a year ago, to the surprise of Rep. Terri Lynn Weaver, R-Lancaster, sponsor of the House version of the bill that passed.

In the hearing that dismissed her bill a year ago, Weaver vowed to bring it back.

"If it's really and truly about the children, let's not make excuses for some of the parents who have no business being parents," she said.

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