News Law and Policy

Tennessee Woman Takes Plea Deal Under State’s Fetal Assault Law

Jessica Mason Pieklo

Advocates say the law effectively criminalizes an entire population: pregnant people.

A Tennessee woman who was one of the first to be charged under the state’s controversial fetal assault law accepted a plea deal that will keep her out of jail but on probation for almost a year.

Brittany Nicole Hudson pleaded guilty to child abuse, or simple assault, stemming from an incident in October 2014 where Hudson allegedly gave birth to a baby girl in a car on the side of a Blount County, Tennessee road. The Blount County Sheriff’s Office then opened an investigation and determined that Hudson had used illicit drugs during her pregnancy.

Tennessee lawmakers in April 2014 passed the first-of-its-kind fetal assault bill, which enables prosecutors to charge pregnant patients with assault for actions patients took while pregnant that cause “harm” to their fetus.

SB 1391 allows a person to be prosecuted for the illegal use of a narcotic while pregnant, if the baby is born addicted to or harmed by the narcotic drug, and the addiction or harm is a result of illegal use of a narcotic drug taken while pregnant.

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This bill allows women to be charged with aggravated assault, which carries a maximum penalty of 15 years in prison, if they have a pregnancy complication after illicit drug use.

Hudson was one of the first women to be charged under the fetal assault law, passed by Tennessee’s GOP-majority state legislature.

“It is very easy to mistake a plea deal that keeps someone from spending time behind bars with a victory,” Farah Diaz-Tello, senior staff attorney at the National Advocates for Pregnant Women, told Rewire in an email. “Ms. Hudson and her attorney made the choice that was best for her under the circumstances, but we need to read between the lines [and] look more closely at the circumstances—including the fact that she gave birth in a car on the side of the road—and … what probation really means.”

Hudson’s baby reportedly showed signs of being affected by drugs at birth, which prompted authorities to place the baby in the University of Tennessee Medical Center’s neonatal intensive care unit, where the child was weaned off opiates.

Tennessee passed its fetal assault law in response to what public health officials decried as a rash of births of babies born with neonatal abstinence syndrome [NAS], a temporary, treatable condition that can occur if a person takes opiates during pregnancy. As Diaz-Tello explained, the law effectively criminalizes an entire population: pregnant people.

“First of all, she [Hudson] pleaded guilty to something that is not a crime: Tennessee’s notoriously failed law makes giving birth to a baby with NAS simple assault, not child abuse,” said Diaz-Tello. “This tells me that she saw the odds so stacked against her that pleading guilty to a non-existent crime of ‘fetal child abuse’ and putting her name on a record of child abusers that will affect her employability and child custody for possibly decades seemed like the better choice than fighting the charge.”

Hudson received two sentences of 11 months and 29 days of supervised probation under the plea deal, according to reports. But Diaz-Tello said that even probation is a poor outcome for people who are facing a fetal assault charge.

“Then there is the fact that probation means 11 months and 29 days of living under the microscope of correctional control. Probation is not designed for people to be successful and whole, it is designed for them to be quasi-prisoners,” Diaz-Tello said. “I’m happy for every woman who manages to keep out of jail, but it’s cold comfort: health-care issues should never be under the jurisdiction of the criminal justice system in the first place.”

A woman who helped Hudson deliver her baby, Bailey McCay Propst, was reportedly also charged with child abuse and providing false information to police after the birth of the child. Officials eventually dropped the child abuse charge against Propst and she later pleaded guilty and was placed on probation for the charge of providing false information to a police officer.

The Tennessee law is set to expire July 1, 2016 unless lawmakers renew the measure.

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