State and national advocates for constitutional and reproductive rights banded together Tuesday for one last push against legislation to allow women who harm their fetuses with drug use during pregnancy to be charged with crimes.
The ACLU of Tennessee and three reproductive rights groups asked Gov. Bill Haslam to veto Senate bill 1391 and House bill 1295, passed last week.
The groups said creating a new criminal penalty would erase previous protections for addicted women and take Tennessee in the wrong direction — driving women away from prenatal care and addiction treatment out of fear they'll be jailed.
"Neither the born nor the unborn are protected when police and prosecutors can decide what is best for pregnant women and new mothers," said Cherisse Scott, CEO of Memphis-based SisterReach, during a Tuesday conference call.
Laura Herzog, a spokeswoman for the governor, said it could be a week before the bill reaches him and that he'll review its final form. She said several state departments had concerns about criminalization but worked with lawmakers to make changes.
But opponents said there are still problems — and a gap between what lawmakers said the law will do and the actual language of the legislation.
"It raises serious constitutional concerns about equal treatment under the law," state ACLU Executive Director Hedy Weinberg wrote in a two-page letter to Haslam.
Farah Diaz-Tello, staff attorney with National Advocates for Pregnant Women, said the "incredibly vague" language leaves open two controversial possibilities: that women could be charged with felonies, and charged for using legal drugs prescribed by doctors.
Health officials and children's hospitals in the state had dropped their opposition to criminalization on the promise that penalties would apply only to illegal narcotics and be capped at misdemeanor assault.
Weinberg and Diaz-Tello said the law would likely face a constitutional challenge under the right to due process and because it applies only to women.
"It would call women out as a special class of persons who can face a special class of punishments and whose health conditions could be used against them by law enforcement," Diaz-Tello said.
Rep. Terri Lynn Weaver, bill sponsor in the House, dismissed those interpretations. Weaver said she wrote the law to target the "worst of the worst" drug-abusing women. She said it's for those who won't get help unless threatened by jail time and offered drug court diversion.
"I think it's absolutely unconscionable as a woman to ingest this stuff knowing what it's doing to a child," she said.
Advocates said they agreed something must be done, but that Tennessee already acted by passing the Safe Harbor Act last year, giving pregnant women priority access to treatment and protecting their custody rights if they get help.
Before the movement toward treatment, women for years had been arrested when their newborns tested positive for drugs. During that time, drug-dependent birthsincreased tenfold.