Commentary Race

Tennessee’s Pregnancy Criminalization Law Will Hit Black Women the Hardest

Imani Gandy

SB 1391 may not target Black women specifically, but history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.

Read more of our coverage on the Tennessee pregnancy criminalization law here.

In Tennessee, pregnant Black women have much to fear as a bill that would subject them to disproportionately higher rates of incarceration and detention sits on Gov. Bill Haslam’s desk, awaiting his signature.

The bill, SB 1391, would impose criminal penalties on mothers of newborns who have been exposed to addictive illegal or prescription drugs in utero. While the bill appears race-neutral, prosecutors and judges will wield the law against Black women more so than white women, based on a long tradition of deeply embedded racial stereotypes about Black motherhood. Should Gov. Haslam ignore the growing outcry against SB 1391 from pro-choice and anti-choice advocates alike, the law would likely lead to Black women being thrown in jail for up to 15 years for aggravated assault should they choose to carry a pregnancy to term while struggling with an addiction to illegal narcotics.

SB 1391 is an attempt by the Tennessee legislature to reduce the number of children born with neonatal abstinence syndrome, a group of problems that occur in newborns who are exposed to addictive illegal or prescription drugs in utero. Current law in Tennessee prevents pregnant women from being prosecuted for a newborn child’s addiction or birth defect resulting from drug use during pregnancy. Indeed, just last year, Gov. Haslam signed into law the Safe Harbor Act, a law meant to help drug-addicted pregnant women get treatment and prenatal care so they can beat their addictions, give birth to healthy newborns, and retain their parental rights. SB 1391 would change that by criminalizing women who suffer from drug addiction. And given the stereotypes that pervade about Black motherhood, that change will hurt Black women the most.

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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 media’s obsession with so-called crack babies is a perfect example. In the 1980s, the media was saturated with tales of “crack babies,” babies born to Black women who were defective from birth and, according to widespread media reports, destined to fail as soon as they exited the birth canal. At the time, an explosion of medical research into crack-exposed newborns suggested that these babies would suffer long-term medical, developmental, and behavioral problems, problems that could never be fixed and that stemmed exclusively from the poor choices that pregnant Black women made. Media reports portrayed pregnant Black women as entirely lacking in any maternal instinct—drug-addled women whose concern was primarily for their next fix, and not for their children.

Notably, the concern during the “crack baby” hysteria was not for the mothers who were addicted to drugs and in need of help so that they could beat their addictions, carry their pregnancies to term, and give birth to healthy babies, but rather on the ways in which the so-called crack babies themselves were a drain on society and taxpayer dollars. Rather than eliciting sympathy, the ways in which, for example, children born with Down syndrome or other genetic anomalies do, “crack babies” were viewed with disdain.

It wasn’t until 30 years later that the “crack baby” myth was debunked. It turns out that poverty, more so than drug use, is a key factor in determining how well so-called crack babies succeed later in life, according to a long-term study on the affects of in utero cocaine exposure on children. Of course by the time these sorts of long-term studies were completed, the stereotypes that had proliferated during the 1980s and ’90s were implacable and the incarceration of drug-addicted pregnant women had become the only solution to a problem that society viewed as endemic in the Black community.

In South Carolina, for example, under a state-sanctioned mandatory drug-testing program, prosecutors arrested and charged drug-addicted Black women for child abuse and neglect at a rate that was far higher than that of white women; 41 of the 42 women arrested under South Carolina’s program were Black. In Florida, a study suggested that Black women were ten times more likely than white women to be reported to authorities, even though the rate of substance abuse between the two groups is about the same. And according to a study conducted in 2001, of the 200 pregnant women or mothers who were arrested and charged with crimes related to illegal drug use during pregnancy, 80 percent were Black or Latina. This is so even though a study conducted by the National Institute on Drug Abuse suggests that most women who use illegal drugs while pregnant are white.

Why the disconnect? Chalk it up to pernicious stereotypes about Black motherhood, which take root in the American consciousness and lead to prosecutors and judges tasked with upholding laws like SB 1391 to apply the laws in discriminatory ways.

Certainly SB 1391 does not target Black women specifically, just as none of the laws that were enacted in states across the country in the wake of the “crack baby” media hysteria did. However, history tells us that laws that do not specifically target people of color nevertheless tend to disparately affect people of color.

This sort of disparate impact is to be expected should Gov. Haslam sign SB 1391 into law. In an interview with Lauren Rankin for Cosmopolitan, Farah Diaz-Tello, a staff attorney at the National Advocates for Pregnant Women, makes the point: “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.”

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

News Abortion

Reproductive Justice Groups Hit Back at RNC’s Anti-Choice Platform

Michelle D. Anderson

Reproductive rights and justice groups are greeting the Republican National Convention with billboards and media campaigns that challenge anti-choice policies.

Reproductive advocacy groups have moved to counter negative images that will be displayed this week during the Republican National Convention (RNC) in Cleveland, while educating the public about anti-choice legislation that has eroded abortion care access nationwide.

Donald Trump, the presumptive GOP nominee for president, along with Indiana Gov. Mike Pence (R), Trump’s choice for vice president, have supported a slew of anti-choice policies.

The National Institute for Reproductive Health is among the many groups bringing attention to the Republican Party’s anti-abortion platform. The New York City-based nonprofit organization this month erected six billboards near RNC headquarters and around downtown Cleveland hotels with the message, “If abortion is made illegal, how much time will a person serve?”

The institute’s campaign comes as Created Equal, an anti-abortion organization based in Columbus, Ohio, released its plans to use aerial advertising. The group’s plan was first reported by The Stream, a conservative Christian website.

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The site reported that the anti-choice banners would span 50 feet by 100 feet and seek to “pressure congressional Republicans into defunding Planned Parenthood.” Those plans were scrapped after the Federal Aviation Administration created a no-fly zone around both parties’ conventions.

Created Equal, which was banned from using similar messages on a large public monitor near the popular Alamo historic site in San Antonio, Texas, in 2014, did not respond to a request for comment on Thursday.

Andrea Miller, president of the National Institute for Reproductive Health, said in an interview with Rewire that Created Equal’s stance and tactics on abortion show how “dramatically out of touch” its leaders compared to where most of the public stands on reproductive rights. Last year, a Gallup poll suggested half of Americans supported a person’s right to have an abortion, while 44 percent considered themselves “pro-life.”

About 56 percent of U.S. adults believe abortion care should be legal all or most of the time, according to the Pew Research Center’s FactTank.

“It’s important to raise awareness about what the RNC platform has historically endorsed and what they have continued to endorse,” Miller told Rewire.

Miller noted that more than a dozen women, like Purvi Patel of Indiana, have been arrested or convicted of alleged self-induced abortion since 2004. The billboards, she said, help convey what might happen if the Republican Party platform becomes law across the country.

Miller said the National Institute for Reproductive Health’s campaign had been in the works for several months before Created Equal announced its now-cancelled aerial advertising plans. Although the group was not aware of Created Equal’s plans, staff anticipated that intimidating messages seeking to shame and stigmatize people would be used during the GOP convention, Miller said.

The institute, in a statement about its billboard campaign, noted that many are unaware of “both the number of anti-choice laws that have passed and their real-life consequences.” The group unveiled an in-depth analysis looking at how the RNC platform “has consistently sought to make abortion both illegal and inaccessible” over the last 30 years.

NARAL Pro-Choice Ohio last week began an online newspaper campaign that placed messages in the Cleveland Plain Dealer via Cleveland.com, the Columbus Dispatch, and the Dayton Daily News, NARAL Pro-Choice Ohio spokesman Gabriel Mann told Rewire.

The ads address actions carried out by Created Equal by asking, “When Did The Right To Life Become The Right To Terrorize Ohio Abortion Providers?”

“We’re looking to expose how bad [Created Equal has] been in these specific media markets in Ohio. Created Equal has targeted doctors outside their homes,” Mann said. “It’s been a very aggressive campaign.”

The NARAL ads direct readers to OhioAbortionFacts.org, an educational website created by NARAL; Planned Parenthood of Greater Ohio; the human rights and reproductive justice group, New Voices Cleveland; and Preterm, the only abortion provider located within Cleveland city limits.

The website provides visitors with a chronological look at anti-abortion restrictions that have been passed in Ohio since the landmark decision in Roe v. Wade in 1973.

In 2015, for example, Ohio’s Republican-held legislature passed a law requiring all abortion facilities to have a transfer agreement with a non-public hospital within 30 miles of their location. 

Like NARAL and the National Institute for Reproductive Health, Preterm has erected a communications campaign against the RNC platform. In Cleveland, that includes a billboard bearing the message, “End The Silence. End the Shame,” along a major highway near the airport, Miller said.

New Voices has focused its advocacy on combatting anti-choice policies and violence against Black women, especially on social media sites like Twitter.

After the police killing of Tamir Rice, a 12-year-old Black boy, New Voices collaborated with the Repeal Hyde Art Project to erect billboard signage showing that reproductive justice includes the right to raise children who are protected from police brutality.

Abortion is not the only issue that has become the subject of billboard advertising at the GOP convention.

Kansas-based environmental and LGBTQ rights group Planting Peace erected a billboard depicting Donald Trump kissing his former challenger Sen. Ted Cruz (R-Texas) just minutes from the RNC site, according to the Plain Dealer.

The billboard, which features the message, “Love Trumps Hate. End Homophobia,” calls for an “immediate change in the Republican Party platform with regard to our LGBT family and LGBT rights,” according to news reports.

CORRECTION: A version of this article incorrectly stated the percentage of Americans in favor of abortion rights.