In October of 2015, more than 250 participants from around the country came together in Nashville, TN for a series of events looking at the legal and medical responses to pregnant women and drug use. Today, we are releasing a report examining pregnancy and drug use and providing a comprehensive set of recommendations in a range of areas including state medical protocols, health coverage and the licensing of treatment facilities.

1. OCTOBER 1, 2015
Nashville Marriott at Vanderbilt University
2555 W. End Ave., Nashville, TN
CONFERENCE
SUMMARY
REPORT

2. CONTENTS
Background ............................................................................3
Conference Overview ............................................................4
Key Conference Questions ....................................................5
Primary Lessons Learned .......................................................6
Policy Recommendations .......................................................8
Understanding Neonatal Abstinence Syndrome (NAS) .........9
Conference Program ............................................................10
Pregnancy Criminalization in the Courts .............................11
Conference Co-Sponsors .....................................................12
“A urine test cup can’t tell you if I am addicted, or if I am
a fit or unfit parent, or how much I love my children.”
- Lynn Paltrow, National Advocates for Pregnant Women

3. BACKGROUND
The conference “Pregnancy, Drug Use & the Law”
was designed in response to the 2014 passage of an
amendment to Tennessee’s criminal assault laws. (TCA
Section 39-13-107)
One change now allows a woman to be charged with
assault for the use of narcotics while pregnant if her
child is born “addicted” to or harmed by the drug.
The law’s proponents stated their intent was to
address the increasing number of Tennessee babies
born with a diagnosis of NAS, or Neonatal Abstinence
Syndrome, a transitory and treatable set of symptoms
that affect some but not all newborns exposed
prenatally to opioids.
The part of the law focusing on pregnant women and
narcotic drug use created what is called an affirmative
defense to the prosecution. It says if the woman
actively enrolls in an “addiction recovery program”
before the child is born, remains in the program after
delivery, and successfully completes the program, she
can potentially avoid a conviction and incarceration.
Unfortunately, an affirmative defense will not protect
a woman from being arrested in the first place even if
she is actively and fully engaged in treatment.
The 2014 revisions, however, were not limited to
narcotic drug use. The 2014 law added language
stating that “Nothing in subsection (a) [which allows
for assault charges to be brought against persons who
assault a fetus] shall apply to any lawful act or lawful
omission by a pregnant woman with respect to an
embryo or fetus with which she is pregnant.”
In other words, the law gives the government power
to punish women if they intentionally, knowingly, or
recklessly (no intent needed) risk or cause bodily injury
to fertilized eggs, embryos, or fetuses as a result of
an “unlawful act” or an “unlawful omission.” These
crimes carry penalties ranging from 1-15 years.
Under this law, women have been arrested for giving
birth to babies who test positive for a non-narcotic
drug and to babies who test positive for a drug but
who were neither “addicted” to nor harmed by the
exposure. Women have also been arrested for risking
harm to a fetus by driving while pregnant without
wearing a seatbelt and for fleeing from the police
while pregnant.
In addition, women have been arrested for giving
birth to newborns who tested positive for an opioid
(narcotic) drug and they have been charged with both
misdemeanor and felony charges.
The implications for women charged under this law
were heavily debated at the bill’s inception and
advocates were able to stop an attempt in 2015 to
add use of methamphetamine to the law.
Since its passage the law has been used to arrest
more than two dozen women – some who have used
narcotic drugs and some, as noted above, who have
used no drugs at all. The majority of arrests were of
low income women and women of color.
The law assumes that every pregnant person who uses
a narcotic drug needs treatment and that sufficient
and affordable treatment programs are available.
In fact, many pregnant women are prescribed
narcotics by their physicians. Fewer than 20 of the 177
Tennessee’s addiction treatment facilities provide any
addiction care for pregnant women. Of those that do,
only a few provide prenatal care on site or allow older
children to stay with their mothers.
The requirement that a program be “completed” also
rules out many successful and medically recommended
forms of treatment for narcotic addiction that use
ongoing medications.
The law is scheduled to sunset in 2016 unless revised
or renewed.
3

4. CONFERENCE
OVERVIEW
On October 1, 2015 more than 150 legal experts, health professionals, social justice advocates
and women who have been directly impacted by drug use gathered in Nashville, TN to discuss
the impact of policies that threaten pregnant women and new mothers with jail for using
drugs.
Panelists included legal experts from human and civil rights organizations, substance use
disorder treatment professionals, physicians and researchers, scholars and advocates (see full
list on page 10).
The conference also included a keynote address by renowned family physician Dr. Ron
Abrahams of Vancouver, Canada, a pioneer in developing drug-treatment protocols for
pregnant and parenting women.
The symposium examined the impact of current Tennessee law, the effectiveness of different
options for treating mothers and infants who are experiencing health issues related to drug
use, and the impact on women and families when government relies on the judicial system to
respond to public health issues.
Health experts identified best practices from current research and evidence-based alternatives
to criminalization.
4

5. KEY CONFERENCE
QUESTIONS
» What are the human and civil rights implications of
such laws?
» What is the connection to other laws that affect
people’s bodily autonomy?
» What treatment options currently exist in our state
for pregnant people struggling with substance use
disorder?
» What do leading medical professionals recommend
as the most effective way to treat symptoms of
NAS?
» What are the impacts on real lives when the criminal
justice system is used to prescribe, enforce, and/or
replace health care?
“The Tennessee law is extreme and is an outlier. It impacts a
pregnant women’s rights to privacy and to seek health care.”
- Carrie Eisert, Amnesty International
5

6. PRIMARY LESSONS
LEARNED
The law is not preventing or addressing harm to infants and is not
being consistently or fairly applied across the state.#1
#2
• The law as written should only be used after a birth and if there is demonstrated
“harm to the child.” It was not intended to be used if a woman tests positive for
narcotics. In fact it has been used to charge women for using several categories of
drugs, and without any proof of harm to an infant.
• Because the term "lawful actions” is part of the law, we have seen pregnant
women arrested not just for harm to a baby or for proof of drug use. One pregnant
Tennessee woman was charged under the law for not wearing a seatbelt.
• The law is not being applied correctly or evenly across the state. Shelby and Sullivan
Counties have the highest number of arrests under the law but not the highest
number of NAS cases. Both counties have used the law to prosecute women within
and outside the scope of its original intent.
• Analysis found that the bail for charges under the law range from $200 to $2,000.
• NAS rates have not gone down since the law was passed.
• Prosecutors have not kept their promise that charges would be limited to
misdemeanor assault. Some women have been charged with felonies under the law
which can have long lasting impacts on child custody and employment.
The law is having a negative impact on women and families.
• There were at least 28 arrests of women under the law as of October 1, 2015. A
majority of those arrested to date are low-income (72%) and women of color (59%).
• Women are avoiding prenatal care and crossing state lines to seek services or give
birth. Some women are afraid to admit past drug use to health care professionals.
Others are scared to go to a hospital to give birth out of fear of arrest.
• Some women do not have friends or family to care for their children while they are in
jail or treatment. This may force all their children into foster care.
• Racism and stigma associated with different kinds of drug use affect who is being
tested for drugs and which babies are flagged to monitor for an NAS diagnosis.
The primary method used to diagnose NAS is widely acknowledged to be highly
subjective.
• The law may encourage women to have abortions to avoid prosecution and losing
custody of older children.
• Detoxing a pregnant woman to abstinence, especially at certain stages of pregnancy,
can severely harm her and her fetus.
6

7. The criminal justice system is not an effective vehicle to reduce
NAS rates or to help pregnant people access appropriate
substance use disorder treatment.
#3
#4
• Treatment providers reported women leaving treatment after the law went into effect
out of fear of being arrested. Other women were unable to get into a court ordered
program or ordered into programs that were not clinically appropriate.
• The law’s affirmative defense requires the completion of a treatment program, but the
recommended protocol for a pregnant woman is medication assistance, an ongoing
regimen. Medication assisted treatment can also result in a positive drug test and
may result in babies being diagnosed with NAS.
• There are currently 132 beds available in Tennessee treatment programs that can
accommodate pregnant women or mothers in recovery. The estimated need is 4,000
women per year.
• Doctors are liable for treatment they prescribe, but court officials are not. Judges are
in effect practicing medicine without a license.
• Drug court programs state that your record will be expunged, but background checks
can still show participation, which can hurt future employment prospects.
• Addiction is worsened by poverty and lack of access to resources for daily living.
Being arrested does not help these things.
Research supports an integrated approach of treatment and
support for healthier women and babies.
• Successful treatment outcomes for pregnant women in Tennessee declined after the
enforcement of the new law.
• The most successful treatment programs for women and infants support
breastfeeding and mothers rooming in with their babies. They are also more cost-
effective than NICU units and jail time.
• American College of Gynecologists issued a Committee Opinion that physicians
should not drug test pregnant women because it creates a barrier between doctor
and patient.
• Medication assisted recovery requires daily visits which can be impossible for some
people depending on where they live. For example, there are only 12 methadone
providers in the entire state (Georgia has 63).
• If mother and baby stay together, babies have lower NAS scores.
• Women who have experienced motherhood along with substance use disorder have
much of the information needed to create effective policies. They need to be part
of any conversations concerning substance use and NAS treatment programs.
"Low-income women have the fewest resources to
navigate the courts and keep their families together."
- Cherisse Scott, SisterReach
7

8. POLICY
RECOMMENDATIONS
1. Let The Pregnancy Criminalization Law sunset in 2016 with no extensions,
expansions or replacements. (Chapter 820 of the Public Acts of 2014, Tenn. Code. Ann.
§39-13-107)
2. Require TennCare and other health insurance programs in the state to include
medication replacement therapies including methadone as covered substance use
disorder treatment services for pregnant women.
3. Require the Tennessee Department of Mental Health and Substance Abuse to adopt
an evidence-based protocol for treating substance-using pregnant women that includes
services such as family residential care, medication replacement therapies, and treatment for
co-occurring mental health disorders.
4. Require the Tennessee Department of Health to adopt an evidence-based protocol
for treating the temporary symptoms of NAS including rooming in with mother, skin to
skin care, support of breast feeding, and medication replacement therapies.
5. Provide funding for two or more Family Residential Treatment pilot programs for
the TennCare population so that this model can be tested with the goal of adding this level
of care to the list of substance use disorder treatment program licenses in TN.
6. Allocate an additional $2,000,000 in funding for TN substance use disorder
treatment programs that provide care for uninsured pregnant women.
7. Promote the
expansion of substance
use disorder treatment
service capacity including
enforcement of parity
regulations to insure that
pregnant women have
access to addiction services
within their health plans.
8. Support the
expansion of medication
replacement therapy
providers across the state.
“In a lot of spheres, addiction is seen as a health issue,
as a disease. But now, if you have a woman who is
pregnant, all of the sudden she's a criminal.”
- Allison Glass, Healthy and Free Tennessee
8

9. UNDERSTANDING
NEONATAL ABSTINENCE
SYNDROME (NAS)
Some newborns that are prenatally exposed to
opioids experience withdrawal symptoms after
birth.1 These symptoms are referred to as neonatal
abstinence syndrome (NAS) and may include
trembling, fever, loose stools, and difficulty sleeping,
all of which are temporary and treatable.2
Some newborns whose mothers take opioids
during pregnancy—including prescribed painkillers,
substance use disorder treatment medications such
as methadone, and illicit opiates—may experience
NAS. Others may not. Research is unclear about
why some babies and not others are diagnosed4
so there is nothing an opioid using mother can
safely do during pregnancy to control or to change
the severity of symptoms that her baby might
experience.
Doctors don’t know precisely why some newborns
diagnosed with NAS may require medication and
others may not. Research does show that skin-to-
skin contact, breastfeeding, and caring for mom
and baby in the same room can significantly reduce
the baby’s hospital stay and need for medication.5
The surest way to give babies the best start in life is
to keep their mothers safe and healthy. Policies that
make people afraid to seek medical care, or that
punish women if their babies are diagnosed with
NAS, are harmful to women, children, and families.6
1 Substance Abuse & Mental Health Services Administration, U.S. Department
of Health & Human Services, Pub. No. [SMA] 06-4124, Methadone Treatment
for Pregnant Women (2006). 2 Id. 3 American College of Obstetricians &
Gynecologists, Committee on Health Care for Underserved Women, Opioid
Abuse, Dependence, and Addiction in Pregnancy, Committee Opinion No.
524 (May 2012). 4 Lauren M. Jansson, et al., The Opioid Exposed Newborn:
Assessment and Pharmacologic Management, 5 J. Opioid Manag. 47 (2009).
5 Ronald R. Abrahams, et al., An Evaluation of Rooming-In Among Substance-
exposed Newborns in British Columbia, 32 J. Obstet. Gynaecol. Can. 866
(2010); Tolulope Saiki, et al., Neonatal Abstinence Syndrome -Postnatal Ward
Versus Neonatal Unit Management, 169 Eur. J. Peds. 95 (2010); Gabrielle
K. Welle-Strand, et al., Breastfeeding Reduces the Need for Withdrawal
Treatment in OpioidExposed Infants, 102 Foundation Acta Paediatrica 1060
(2013). 6 American College of Obstetri-cians and Gynecologists, Committee
on Ethics, Maternal Decision Making, Ethics, and the Law, 106 Obstetrics &
Gynecology 1127 (2005).
IS NAS LIFE
THREATENING?
NAS is not life threatening or
permanent, and studies show that
newborns with NAS do not develop
any differently than other children.3
CAN TREATMENT
CAUSE NAS?
The recommended treatment protocol
for a pregnant person dependent on
opioids is medication assisted treatment,
which can result in both a positive drug
test and symptoms of NAS.3
9
CAN YOU TREAT
NAS?
Breastfeeding, rooming babies with
mothers, and skin-to-skin contact
have all been shown to be effective
treatments for NAS.
WHAT’S BEST FOR
MOMS & BABIES?
The recommended treatment protocol
for a pregnant person dependent on
opioids is medication assisted treatment,
which can result in both a positive drug
test and symptoms of NAS.3

10. CONFERENCE
PROGRAM
PREGNANCY & THE LAW IN THE 21ST CENTURY
Lynn Paltrow, Director, National Advocates for Pregnant Women, NYC
Tom Castelli, Legal Director, ACLU of Tennessee, Nashville, TN
Carrie Eisert, Policy Analyst and Researcher, Amnesty International, NYC
POLICING WOMEN’S BODIES AND REPRODUCTIVE INJUSTICE
Cherisse Scott, Founder/CEO, SisterReach, Memphis, TN
Farah Diaz-Tello, National Advocates for Pregnant Women, NYC
Dr. Joia Perry, OB/GYN, New Orleans, LA
Shannon Casteel-Derf, mother, advocate
TREATMENT OPTIONS FOR PREGNANT OPIOID USERS IN TN
Mary-Linden Salter, Executive Director, Tennessee Association of Alcohol, Drug Abuse and other Addiction
Services (TAADAS), Nashville, TN
Rod Bragg, Assistant Commissioner for Substance Abuse Services, Tennessee Dept. of Mental Health, Nashville,
TN (unable to attend—slides shared with participants)
Jackie Pennings, Ph.D., Researcher, TN Dept. of Mental Health, Nashville, TN (unable to attend – research was
shared with participants)
Dr. Jessica Young, M.D., Vanderbilt School of Medicine, Nashville, TN
Michelle Jones, Director, Mothers & Infants Sober Together (MIST)
Laura Berlind, CEO, Renewal House, Nashville, TN
PERINATAL ADDICTION & HARM REDUCTION: INTEGRATING THE HOSPITAL AND
COMMUNITY TO IMPROVE OUTCOMES
Dr. Ron Abrahams, founding Medical Director of the FIR (Families In Recovery) rooming-in program at British
Columbia Women’s Hospital, Vancouver
PUNISHMENT VS. TREATMENT: EFFICACY AND ETHICS
Josh Spickler, Esq., Shelby County Public Defender’s office, Memphis, TN
Zac Talbott, Director, National Alliance for Medication Assisted (NAMA) Recovery, TN and GA Chapters
Rachel Brown, substance abuse and mental health treatment center counselor, Knoxville, TN
Jordan Frye, undergraduate research award recipient, University of Tennessee School of Social Work, Knoxville, TN
Elaine Pawlowski, mother directly impacted by drug use, Daniel Island, South Carolina
FAIR & EFFECTIVE POLICIES FOR PREGNANT PEOPLE IN TN
Farah Diaz-Tello, National Advocates for Pregnant Women, NYC
Denicia Cadena, Young Women United, New Mexico
Susan C. Boyd, Ph.D., Studies in Policy and Practice, University of Victoria, Canada (unable to attend)
Daniel Raymond, Harm Reduction Coalition, NYC
Mary-Linden Salter, Tennessee Association of Alcohol, Drug and other Addiction Services (TAADAS), Nashville, TN
10

11. PREGNANCY
CRIMINALIZATION
IN THE COURTS
In recent weeks, courts have handed down verdicts that demonstrate the harmful and problematic nature of
responding to drug use during pregnancy by incarcerating women and separating families. These cases also
demonstrate the very dangerous and slippery slope that can result from laws like the one in Tennessee.
Melissa McCann Arms was sentenced in Arkansas to 20 years in prison for using
methamphetamine while she was pregnant. Prior to her conviction, Melissa had
completed drug rehab, parenting classes, and several 12-step programs in hopes
of keeping her son. She was convicted under a law regarding the introduction of
a controlled substance into the body of another person.
On October 8, 2015, the Arkansas Supreme Court reversed her conviction.
The law was used in a way that was never intended by the Arkansas
legislature.
During a medical visit early in her pregnancy, Tammy Loertsher sought help to
deal with drug use. She had utilized drugs to self-medicate for serious thyroid
problems before she knew she was pregnant. Rather than providing confidential
medical help, the hospital reported her. She was incarcerated for 18 days in
a county jail without access to any medication. She was also put in solitary
confinement and threatened with a Taser. This case is based on a law allowing the
state to detain pregnant women, at any stage of pregnancy, if they use or admit
to past use of alcohol or drugs.
On September 30, a federal district court judge denied Wisconsin's re-quest
to dismiss a civil-rights lawsuit challenging a state law used to illegally jail
and detain pregnant women.
11

12. CONFERENCE
CO-SPONSORS
Healthy and Free Tennessee (HFTN) is a non-partisan coalition of groups and individuals working
together to promote and protect sexual health and reproductive freedom across the state. We develop
messages and action steps for advocates, educators, and providers; raise awareness and promote sexual
health and reproductive freedom across the lifespan; and develop strategies to meet the sexual and
reproductive health needs of our citizens. HealthyandFreeTN.org
Tennessee Association of Alcohol, Drug & other Addiction Services (TAADAS) is a statewide,
consumer-oriented, association representing thousands of consumers in recovery, family members,
healthcare professionals & providers. Our mission is to educate, support and engage our members and
public, influence policy and advocate for prevention, treatment and recovery services. TAADAS.org
SisterReach is a grassroots organization that empowers, organizes and mobilizes women and girls
around their reproductive and sexual health. Our goal is to support women and girls to lead healthy
lives, have healthy families and live in healthy communities by offering fundamental comprehensive
education about their sexual and reproductive health. SisterReach is committed to education, policy and
advocacy on the behalf of women and girls. SisterReach.org
The American Civil Liberties Union of Tennessee (ACLU-TN) is dedicated to translating the
guarantees of the Bill of Rights into reality for all Tennesseans. The principles ACLU-TN fights for include:
the right to free speech and expression; the right to freely practice any religion or no religion; the right
to equal treatment, regardless of race, ethnicity, gender, age, religion, disability, or sexual orientation;
the right to reproductive freedom; and the right to privacy. ACLU-TN.org
National Advocates for Pregnant Women (NAPW) seeks to protect the rights and human dignity
of all women, particularly pregnant and parenting women and those who are most vulnerable
including low income women, women of color, and drug-using women. Our work encompasses
legal advocacy; local and national organizing; public policy development, and public education.
AdvocatesforPregnantWomen.org
WITH MAJOR SUPPORT FROM
For access to a taped recording of the October
1, 2015 conference, for more information on
these issues, or to contact a panelist, speaker or
sponsor, please send an email to
Allison@HealthyandFreeTN.org or contact:
Healthy & Free Tennessee
1726 Poplar Avenue Memphis, TN 38104
901-791-9385
HealthyandFreeTN.org