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

CONFERENCESUMMARYREPORT

CONTENTSBackground ........................................................................... 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

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

CONFERENCE OVERVIEWOn 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

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

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

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

POLICY RECOMMENDATIONS1. 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

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

CONFERENCE PROGRAMPREGNANCY & 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 INJUSTICECherisse 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 TNMary-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 ETHICSJosh 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 TNFarah 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

PREGNANCY CRIMINALIZATION IN THE COURTSIn 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

CONFERENCE CO-SPONSORSHealthy 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