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Expanded Commentary on SB1065/HB890 – Forced Drug Tests for Pregnant Women

February 22, 2009

I’ve been pondering for the last few days this bill proposed in the Tennessee legislature that would mandate drug testing for women who don’t receive “complete” prenatal care or have anything go wrong with their pregnancies, possibly leading to forced rehab and reporting to Children’s Services. There is a lot wrong with this bill, and I choose to write it out here, rather than making blog-standard soundbite snippets for easy consumption. As a result, much of this has been said already by others in various ways, but I felt that it was important for me to explicitly put my opposition out there. I have not at all been able to condense this into a legislator-friendly format, except by taking my own bolded points after writing it out fully. Any of my readers may feel free to take the bolded (or other) points directly to craft shortened letters to their legislators, as I did. I hope you’ll bear with me and read the following:

This bill, as much as any anti-abortion legislation you might see, privileges the fetus over the woman and allows the state to dictate the behavior and choices of pregnant women, though the requirement for “complete” and timely prenatal care. It compels women to take certain actions simply because they are pregnant, and as such makes clear that the rights of the fetus, rather than the woman herself, are worth state protection. While I will outline several other problems below, this one item bears constant repeating as it is just as much an anti-choice measure as any other bill you will find. While it may masquerade as a bill “for the children,” it is very much built on the notion that women lose rights to their bodies and their choices when a fetus shows up.

Under the provisions of this bill, women do not just become subject to state interference by failing to meet the criteria in the prenatal care portion of the proposed legislation (to which I object) – the behavior of all pregnant women becomes subject to state scrutiny. Ultimately, this intended control over women may actually discourage women from seeking care inside the medical system. It places health care providers – who do not exist to be policing agents – in the uncomfortable role of potentially being required to report women against what may be their best medical judgment. Women may in fact be especially motivated during pregnancy to make positive lifestyle changes, but this bill creates an environment of fear and secrecy between woman and provider rather than one of support. As the March of Dimes has stated, “Punitive approaches to drug addiction may be harmful to pregnant women because they interfere with access to appropriate health care. Fear of punishment may cause women most in need of prenatal services to avoid health care professionals.” For myself, as someone who has only rarely been in a position to find the government as a personal, rather than systemic, adversary, it makes me want to go completely outside of the system should I ever become pregnant – and I don’t think that’s what has been intended by the authors at all.

And let’s just get that out of the way right now – I know that this bill is likely not intended to “catch” women “like me” – mostly white women with college educations and professional office jobs. In reality, the provisions of section c would “catch” many women just like myself, who might have a glass of wine or who might have been told off-the-record by providers that a little marijuana would ease morning sickness so they could actually eat some food and gain appropriate pregnancy weight – or who simply might not fit the drug war stereotype of a substance user. In general, I’m willing to wager that supporters of the bill are not imagining people who look like me when they picture the women affected.

The fact that it is likely not intended to catch women “like me,” however, reveals a bit of the racist and classist assumptions underlying the bill. It has been rumored that the authors might see this as a way to reduce the appalling infant mortality rate in Memphis. While that is something absolutely worth working on, this bill makes an assumption that the cause is just individual bad/illegal choices by those poor black women that we disproportionately find in Memphis, instead of looking for systemic or medical evidence-based causes. It is quite likely to disproportionately affect women of color, women whose reproduction in this country has historically been subjected to a higher level of policing, and reminds those women that they are still the subject of greater reproductive scrutiny. As the National Advocates for Pregnant Women note, “In general, the justifications for prohibition and regulation of both drugs and reproduction have often been based on various forms of stigma and prejudice, including but not limited to those based on race, ethnicity, and gender. Laws prohibiting and regulating drugs, abortion, and contraception are generally enforced disproportionally against low-income people and people of color.”

The bill also creates an expectation – contrary to what is known about human pregnancy – that all pregnancies will have successful outcomes, and responds with the false assumption that undesireable outcomes are likely to be the “fault” of the pregnant women, especially with regards to drug or alcohol use. It creates a scenario in which a fetal death, preterm labor, or other complication creates a presumption of guilt from which the woman must then clear herself of or potentially incriminate herself through forced drug and alcohol testing. I suspect that there are therefore arguments to be made here about probable cause and illegal search and seizure, although I will leave those arguments to someone better equipped in the law.

The bill ignores the reality that the vast majority of the listed complications may be caused by a number of factors, most of which are not drug/alcohol-related, and for which doctors themselves are often able to offer no explanation. For example, the criteria includes “preterm labor of no known cause,” although preterm labor is one of the great mysteries of pregnancy and very often has no known cause, and is not assumed to be the fault of the woman.

The bill also ignores the barriers to prenatal care many women face – especially those poor women, those women of color, that you might picture when you think about who will get “caught” – of time off from work or school, of paid sick leave, of health insurance, of money for co-pays, of transportation to clinics, language barriers, and other concerns. While early and regular prenatal care is recommended to improve the likelihood of a successful pregnancy, this bill does nothing to address the barriers women face to seeking care, barriers that are likely to be in place with regards to forced rehabilitation as well. There is often a lack of openings in rehabilitation facilities, particularly in facilities that may be able to accommodate a woman with other childcare responsibilities. Rehabilitation programs are also costly, may be located in areas inaccessible to an individual woman, may require unpaid time off from work or the loss of a job, may require the arrangement of childcare for existing children, and come with any number of other barriers.

Relatedly, forced rehab ultimately may be an inappropriate response to casual or incidental drug or alcohol use (a possibility ignored in the current language of the bill). While levels of detection are apparently intended to be set, the bill as written gives no guarantee that women who medically do not require a full rehabilitation intervention are dealt with appropriately. As has been suggested, the loss of a wanted pregnancy may result, for example, in drinking in an otherwise “responsible” woman, and this legal response may be perfectly appropriate and not suggest that rehab is required. This appropriateness issue is in addition to concerns that women should not be compelled to seek specific types of care against their will in the first place.

It is tempting, of course, to buy into historical “crack baby” propaganda and assume that unfavorable pregnancy outcomes must be the result of individual bad choices related to drugs and alcohol. However, it is worth knowing that it was just that – propaganda intended to demonize women in service of the agenda of generating support for the “war on drugs people.” Evidence to support the claims being made about “crack babies” was shaky at the time, and has become more so over the passing years. As the National Advocates for Pregnant Women explains regarding the targeting of premature birth among “crack babies”:

“…these mothers also typically had long histories of poverty and victimization. More than two thirds had been sexually abused as children or were current victims of domestic violence. It was also quite common for them to have witnessed traumatic events, like seeing a relative murdered. Most were depressed.

All these stressors, particularly in combination, can seriously threaten a pregnancy. And they’re probably a big reason “crack mothers” sought chemical escape in the first place. Profound stress is believed to be such an important factor in prematurity and other neonatal development problems that the March of Dimes’ Campaign to Prevent Birth Defects recently targeted stress as a priority research area.”

Pursuing a punitive drug/alcohol-based approach to controlling pregnancy outcomes ignores a number of factors which are systemic rather than individual responsibility-based, makes erroneous assumptions about medical factors which are currently unexplained, and furthers a backward-looking approach rather than looking forward for new solutions. While this bill is at least an minor improvement over laws elsewhere that automatically separate mothers and children (this one only threatens to) and involve the criminal justice system when a woman tests positive for drugs, it operates on the same faulty logic that the state owns the pregnancies of women and that bad choices by individual women are the cause of most unfavorable pregnancy outcomes.

There are any number of other problems with this bill. For example, alcohol is legal for women ≥21 years of age to drink, even in pregnancy. Many other legal factors may influence the outcome of a pregnancy, including cigarette smoking and riding in automobiles. It is inappropriate to subject women to the threat of punitive measures for behaviors that are in fact legal during their pregnancies. As one commenter noted, by threatening report to children’s services based on women’s behavior (rehab attendance) only, it applies a punitive threat to mothers that is not being applied to fathers. It ignores the practical aspect that a woman who switches care providers may be “caught” based on incorrect assumptions. It’s just mean to treat women who have lost a wanted pregnancy as though they are criminals and are assumed to be specifically, directly “at fault” for that loss. It’s not clear whether “intrauterine fetal death” forces women who have abortions to also be drug-tested. It treats drug and alcohol use as an enforcement issue, rather than a health issue.

Ultimately, though, this comes down to an issue of whether my body belongs to the state instead of to me. Whether I am presumed guilty and subjected to invasive testing against my will. Whether medical knowledge is ignored in favor of policing “bad” women. Whether systemic barriers to care are ignored in favor of finding someone to blame for our failings. Whether we continue the same ineffective “war on drugs” policies that I believe have been a failure for decades. Whether, when pregnant, the state has more interest in and control over my body and actions than I do.

To all of this, I say, resoundingly, no.

14 Comments leave one →
  1. MomTFH permalink
    February 22, 2009 11:06 am

    Incredible post. Thanks.

  2. Blue Sumner Daze permalink
    February 22, 2009 9:43 pm

    Here’s the big problem I see – it involves the law of unintended consequences. The likely response to this is that some women – particularly those who have had negative experiences with the law, child welfare or other social services, will avoid prenatal care rather than come into contact with someone who could turn them in, resulting in even worse outcomes.

  3. February 24, 2009 2:00 pm

    What a well-written, cogent argument and a great post, Rachel.

    I don’t drink much (and didn’t at all while pregnant, although I was tempted to have a glass of wine with dinner once!) and I am one of those white, professional, middle-class “women like you” that the bill is not targeting.

    However, I am a natural health advocate who skipped out on one ultrasound because I deemed it excessive and may refuse several tests that are “recommended” during my next pregnancy.

    Reading about this bill (and the potential that it may pass in other states, though likely not in ultra-liberal NY!) makes me want to have my next baby in the comfort of my living room, w/ a midwife, my hubby and a birthing pool, and no medical care from a physician or anyone even connected with a hospital whatsoever.

  4. February 24, 2009 3:47 pm

    Thanks, Dawn. And I agree – it just makes me want to be as far outside the system as possible, which I don’t think is at all what the bill authors had in mind.

  5. Kimberly Handy permalink
    July 31, 2009 9:14 am

    This happened to me already, Ft. Sanders Perinatal Center in Knoxville, TN gave me a drug screen, with out my consent and during consultation stated there will be a screen at each appointment. This generally is no problem but I did feel violated. I am glad I resourced your site, now I know the law hasn’t taken effect yet. I am switching doctors to one that can abide by the law and understand my rights! This unwarranted drug screen is a waste of insurance dollars and was based on the fact that I am currently on unemployment and on TennCare as a result.


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