Please read the attached article (below). Provide a 500-800 (2-3 pages-double spaced-not including cover page) article response. In your article response, you should provide a brief summary of the art

Key Points for the Family Court Community:

The impact of drug abuse during pregnancy causes unhealthy babies, which creates a financial and social burden on the state.

Drug use during pregnancy is associated with many risks including mortality, low birth weight, and Neonatal Absti- nence Syndrome.

The goal of incentivizing healthy births can be achieved through a specific statute criminalizing drug use during pregnancy.

The Tennessee statute provides an affirmative defense for mothers who are actively enrolled in an addiction recovery program before the child is born and successfully complete the program. While still approaching addiction as a disease, this methodology will incentivize pregnant drug users to seek help before birthing an unhealthy child.

Keywords:Addiction; Criminalization; Drug Abuse; Drug Rehabilitation; Drug Use; Neonatal Abstinence Syndrome; Pregnancy; and Pregnant Drug Use. I. INTRODUCTION On Sunday, July 6, 2014, Mallory Loyola gave birth to a baby girl. 1Within hours of being born, that baby tested positive for methamphetamine (meth). 2Meth abuse during pregnancy can lead to increased rates of premature delivery, placental abruption, small size, lethargy, mortality, heart and brain abnormalities, and neurobehavioral problems throughout life. 3On July 8, 2014, Mallory Loy- ola was arrested and charged with simple assault under Tennessee’s 2014 statute criminalizing preg- nant drug use. 4She pled guilty to a probation violation and was mandated by the drug court to a drug rehabilitation program. 5The court dismissed her case in February 2015 after she completed a program at Helen Ross McNabb Center and stayed out of trouble for six months. 6 Tennessee is the first state in the United States to criminalize pregnant drug use. 7Although Mal- lory Loyola is the first to face criminal charges for her pregnant drug use, she certainly will not be the last. 8Based on data averaged across 2012 and 2013 in the United States, 5.4% of pregnant women aged fifteen to forty-four are current illicit drug users. 9Research from the University of Michigan has revealed that one baby is born every hour addicted to opiate drugs in the United States. 10 Newborns with drug addiction experience longer and more costly hospitalizations than Correspondence: [email protected] FAMILY COURT REVIEW, Vol. 54 No. 1, January 2016 96–111VC2016 Association of Family and Conciliation Courts healthy babies, and the majority of hospital expenditures for this condition are paid for by the state through Medicaid programs. 11 The increasing incidence of drug addicted babies is a serious social problem, and Tennessee is engaged in a useful experiment to analyze whether criminalization is a suitable approach to the problem.

12 In order to reduce antenatal exposure to illegal drugs across the United States, pregnant drug users who do not seek help before her baby is born must be criminalized to create a deterrent and mandated rehabilitation. 13 This Note proposes that states carefully monitor the implementation of the Tennessee statute and consider its implications in their own states. The Tennessee statute implements criminal assault penal- ties on a woman for the “illegal use of a narcotic drug while pregnant if her child is born addicted or harmed by the narcotic drug and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.” 14 The statute specifically addresses only those women who birth a child; there- fore, pregnant women can still decide to abort the fetus within the limits of Tennessee law. 15 It is the legislative intent that this law will still allow a woman to have the choice to abort the fetus within the limits of Tennessee law. 16Additionally, the statute provides an affirmative defense for mothers actively enrolled in an addiction recovery program before the child is born and who successfully complete the program. 17In order to track the impact of the law on mothers and babies in each specific state, the pro- posal contains a sunset provision in two years to review the statute’s overall effect. 18Every state should adopt the Tennessee statute to ensure a criminal deterrent that also provides access to drug treatment for pregnant women using drugs. The statute should be comprehensively evaluated, as is currently pro- vided, after two years of implementation. This will allow individual states choosing to adopt this legis- lation to modify and amend it in accordance with their needs.

Part II of this Note provides a background to the growing number of babies being born addicted to drugs and its effects on society, the child’s health, the parents, and the state. Part III of this Note discusses the implementation of the Tennessee statute to combat neonatal abstinence syndrome (NAS). Part IV of this Note explores the current state of the law and shows that states are conflicting in their solution to this problem. For example, some states, such as Colorado, consider drug abuse during pregnancy to be a civil wrong, like abuse or neglect. 19 Others, like Alabama, have upheld criminal convictions for pregnant substance abuse. 20 Part V of this Note offers a solution to protect drug addicted babies by proposing that states adopt the Tennessee statute. 21 The national yearly increase in babies that were born drug addicted calls for a novel experiment, such as the Tennessee statute, which should be implemented and carefully coordinated with drug courts to make sure that the promise of drug treatment is assured. 22 Part VI considers potential counterarguments including the costs associated with the proposal, the equal protection clause of the U.S. Constitution, any harm- ful effects to babies, and a woman’s right to individual privacy rights. Part VII of this Note concludes that implementing the Tennessee statute in each state is a potentially advantageous way to provide rehabilitation to mothers and solve the problem of drug use during pregnancy.

II. BACKGROUND INFORMATION ON NEWBORNS WITH NAS A. NAS A newborn suffers from NAS when exposure to certain drugs in utero creates drug withdrawal after birth. 23 This occurs when the baby’s drug consumption is abruptly stopped when the child is detached from the mother’s umbilical cord. 24 Because the baby has developed physical dependence on the drug, the newborn may develop a drug withdrawal syndrome known as NAS. 25The syndrome most commonly occurs in the context of antepartum opiate use, but other drugs have also been impli- cated. 26 In addition to giving rise to NAS, illicit drug use during pregnancy is associated with a sig- nificantly increased risk of other neonatal issues such as low birth weight and mortality. 27 Symptoms of NAS have been described in sixty to eighty percent of newborns exposed to heroin or methadone in utero. 28 These newborns experience irritability, hypertonia, tremors, feeding intoler- ance, emesis, watery stools, seizures, and respiratory distress. 29 Heroin-exposed infants may Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 97 demonstrate symptoms within twenty-four hours of birth. 30 A 2012 study in theJournal of the Amer- ican Medical Association(JAMA) showed that between 2000 and 2009 the rate of newborns diag- nosed with NAS increased from 1.20 to 3.39 per 1,000 hospital births per year. 31 This is consistent with the number of mothers using opiates, which increased from 1.19 in 2000 to 5.63 in 2009 per 1000 hospital births per year. 32 JAMApublished a study showing that, on average, hospital charges for newborns with NAS are about five times more than charges for newborns without NAS. 33 From 2000 to 2009, the cost of health care for newborns diagnosed with NAS rose significantly from $190 million to $720 million. 34 In 2009, the average hospital bill for a baby with NAS was $53,400 compared to the hospital bill of a baby without NAS that is approximately $9,500. 35 According to the University of Michigan, that cost is primarily incurred by the state. 36 By 2009, 77.6 percent of charges for babies with NAS were covered by Medicaid for healthcare costs.37 In addition to the financial costs, NAScomes at a very high emotional cost. 38 Symptoms of NAS often begin within one to seven days after birth. 39Symptoms include excessive crying, high-pitched cry- ing, diarrhea, fever, seizure, rapid breathing, hyperactive reflexes, and vomiting, among others. 40In order to treat a drug addicted baby, the child must be placed in a monitoring area to be continuously examined for symptom persistence. 41When nonpharmacological support is not enough, pharmacological manage- ment is utilized to relieve moderate to severe signs of NAS and prevent complications. 42 The first-line therapy for opioid withdrawal is treatment with an opiate such as morphine or methadone.43 B. RISKS ASSOCIATED WITH SPECIFIC DRUG USE DURING PREGNANCY Drug use during pregnancy is severe because it affects two people. 44 The range of risks can vary anywhere from miscarriage to maternal death. 45 As drug use causes definite harm, each drug creates its own mark when taken while pregnant. 46 Marijuana, for example, crosses the placenta to the fetus. 47 The smoke increases the levels of carbon monoxide and carbon dioxide in the blood, which in turn reduces the oxygen supply to the fetus. 48 The toxins from the marijuana prevent the fetus from obtaining the proper supply of oxygen necessary to sur- vive. 49 It has been noted that smoking marijuana during pregnancy can increase the chance of miscar- riage, low birth weight, premature births, developmental delays, and behavioral and learning problems. 50 Frequent use of cocaine is a serious risk for birth defects anywhere from small head development to growth restrictions. 51 Cocaine use in the early stages of pregnancy can dramatically increase the risk of miscarriage. 52 Later in pregnancy, it can cause placental abruption, which causes problems such as severe bleeding, preterm birth, and fetal death. 53 Specifically, pregnant cocaine users have a 25% increased chance of premature labor. 54 Babies born with cocaine exposure may be born with NAS; have learning difficulties; and/or have defects in the genitals, kidneys, and brain. 55 Heroin and methamphetamine are two other major causes of NAS, leading to newborn drug with- drawal. 56Pregnant heroin exposure increases the chance of premature birth, low birth weight, breathing difficulties, hypoglycemia, intracranial hemorrhage, and infant death. 57 Use of methamphetamine also increases the likelihood of low birth weight, premature labor, miscarriage, and placental abruption. 58 III. IMPLEMENTATION OF THE TENNESSEE STATUTE TO COMBAT NAS In Tennessee, opiate addiction has become a major problem. 59 The Tennessee Department of Health has reported that the ranking of the top three drugs, named as a primary substance of abuse, changed dramatically from 1999 to 2009: opioid abuse in Tennessee is greater than abuse of mari- juana or crack/cocaine. 60 In addition to the state’s increase in opiate use, the state has seen an increase in NAS patients.61 In 2013, 921 newborns were born dependent on drugs their mothers used while pregnant. 62 In 2014, that number increased to 973. 63 So far in 2015, as of January 31, there are already 43 cases reported; a number that is already up from the 39 reported by January 25 in 2014. 64 98 FAMILY COURT REVIEW Since 1989, Tennessee has struggled with amending and editing the state’s fetal homicide laws to create a regulation that specifically addresses the drug issues concerning pregnant mothers. 65 On February 14, 2013, Tennessee Pregnancy Criminalization Law, House Bill 1295, was created to amend Tennessee’s fetal homicide law to allow a woman to be prosecuted if her child is born addicted to or harmed by her illegal use of a narcotic drug taken while pregnant. 66 This is the com- panion bill to SB 1391, which Governor Haslam signed into law on April 29, 2014.67 The Tennessee statute, issued by Governor Haslam, has only been effective since July 2014 and provides that a woman can be charged with a misdemeanor if her baby is harmed as a result of her illegal use of narcotics during pregnancy. 68The Tennessee Department of Health explained the intent of the statute is to “give law enforcement and district attorneys a tool to address illicit drug use among pregnant women, through treatment programs including drug courts and particularly in egre- gious cases such as more than one NAS delivery.” 69 The statute allows women to be charged with aggravated assault, which carries a maximum penalty of fifteen years in prison, if their illegal use of drugs results in a pregnancy complication. 70 The state is also committed to tracking the impact of the law on mothers and babies and contains a sunset provision in two years. 71 A. THE TENNESSEE STATUTE AND ITS RELATIONSHIP WITH DRUG COURTS Drug courts are specialized courts that operate under a specialized model in which the judiciary, law enforcement, and treatment facilities work together to help nonviolent offenders recover from drug addiction and become productive citizens. 72 In drug court, individuals are forced to complete a drug rehabilitation program under the supervision of the court, as an alternative or addition to jail. 73 If the offender succeeds with treatment, charges against her may be dropped. If she does not comply with program requirements, she is reviewed by the court and sanctioned. 74 Drug courts work hand in hand with rehabilitation centers. 75 In Tennessee, many of these treat- ment agencies are paid for by the state and give priority admissions to pregnant intravenous drug users, pregnant substance users, intravenous drug users, and even medically monitored withdrawal management. 76There are a total of eighty-two state-funded drug rehab centers in Tennessee. 77 Through the mandating and close monitoring of rehabilitation, drug offenders are able to get the help they need while complying with the law. 78The legislative intent of the Tennessee statute involves the use of drug courts to rehabilitate nonviolent, remorseful offenders, keeping them out of jail and with their families. 79 Not all drug offenders are eligible for drug court, and worse cases, such as more than one NAS delivery or a blatant disregard for newborn health, will be taken into account. 80 B. TWO-YEAR SUNSET EVALUATION IN THE TENNESSEE STATUTE Because the number of newborns with NAS is on a quick and constant rise in the United States, a hurried response is appropriate. 81 One baby is born every hour addicted to opiate drugs in the United States, so a response is necessary within the hour. 82 Each state should implement the Tennessee statute immediately, with a two-year sunset provision to analyze the results and adjust the law accordingly to fit the needs of that state. For example, the Tennes- see Department of Health has reported a statewide increase in drug users and NAS patients. 83 Through careful monitoring and reporting, Tennessee and other states can adjust the statute in regard to the num- ber of illegal drug users and affected babies and program costs, and amend the statute as necessary.

IV. CURRENT STATE OF THE LAW CONCERNING PREGNANT DRUG ABUSE ON A NATIONAL LEVEL Many states classify prenatal drug exposure as child abuse or neglect, treating the issue as more of a civil matter than criminal. 84 Eighteen states 85 consider substance abuse during pregnancy to be Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 99 child abuse under civil child-welfare statutes, and three 86 consider it grounds for civil commitment, such as forced admission to an inpatient treatment program. For example, in Minnesota, the court may order early intervention treatment if the court finds by clear and convincing evidence that a preg- nant woman is a chemically dependent person. 87 Four states prohibit publicly funded drug treatment programs from discriminating against pregnant women. 88 Fifteen states 89 require health care professionals to report suspected prenatal drug abuse, and five states 90 require them to test for prenatal drug exposure if they suspect abuse. 91 For example, Wiscon- sin requires health care professionals who suspect fetal alcohol syndrome to test the infant and report to the agency responsible for conducting child abuse and neglect investigations.

92 In 2001, the U.S.

Supreme Court inFerguson v. City of Charlestonheld that it is a violation of the Fourth Amendment for a hospital regulation to require pregnant women to be tested for drugs and be reported to the police if the test results are positive. 93 This is a violation of searches without probable cause. 94 How- ever, the case only addressed the issue of evidence collection for criminal prosecution of pregnant women, remaining silent on the more general question of whether such prosecutions are permissible. 95 Nineteen states have either created or funded drug treatment programs specifically targeted 96 to pregnant women, and eleven provide pregnant women with priority access 97 to state-funded drug treatment programs. Some states, including Tennessee, have utilized federal funds to make drug treatment more readily available to pregnant women. 98 Tennessee is the only state to specifically criminalize drug use during pregnancy through a stat- ute.99 However, supreme courts in Alabama and South Carolina have both upheld convictions ruling that a woman’s substance abuse in pregnancy constitutes criminal child abuse. 100 Some states have treated the issue as one of civil rather than criminal law by including prenatal drug exposure as grounds for terminating parental rights. 101 These states consider prenatal drug exposure to be abuse or neglect. 102 On the other hand, some states authorize a civil commitment procedure of forced admission to an inpatient treatment program for pregnant women who use drugs. 103 Many states require that health care professionals report or test for prenatal drug exposure. 104 Lastly, some states, including Tennessee, have utilized federal funds to make drug treatment more readily available to pregnant women. 105 Tennessee is the only state that currently allows criminal assault charges to be filed against a preg- nant woman who uses certain illegal substances. 106 Specifically, Tennessee Code Section 39-13-107 classifies victims of the law to include an embryo or a fetus. 107 The law targets women for the “illegal use of a narcotic drug...while pregnant, if her child is born addicted to or harmed by the nar- cotic drug and the addiction or harm is a result of her illegal use of a narcotic drug taken while preg- nant.” 108 Under this law, the woman is not criminalized for using drugs while pregnant if the child is not born.109 Further, the statute states, that “it is an affirmative defense to a prosecution permitted by subdivision (c)(2) that the woman actively enrolled in an addiction recovery program before the child is born, remained in the program after delivery, and successfully completed the program, regardless of whether the child was born addicted to or harmed by the narcotic drug.” 110 The law creates a carve-out defense for those who genuinely seek help through a rehabilitation facility.

Both Alabama and South Carolina supreme courts have upheld convictions of pregnant women for drug use during pregnancy. 111 InWhitner v. State,the South Carolina supreme court held that cocaine use while pregnant constitutes child abuse. 112 Whitner gave birth to a child that had tested positive for cocaine. 113 She pled guilty to criminal child neglect for using cocaine while pregnant and was sentenced to serve eight years in prison. 114 The court held that child abuse is defined by whether the action is likely to endanger the child, even if the underlying act by itself is legal. 115 In her defense, Whitner argued that if the word “child” is to include a viable fetus, than every action by a pregnant woman, legal or not, would constitute unlawful neglect. 116 The court disagreed: After the birth of a child, a parent can be prosecuted...for an action that is likely to endanger the child without regard to whether the action is illegal in itself. For example, a parent who drinks excessively could, under certain circumstances, be guilty of child neglect or endangerment even though the 100 FAMILY COURT REVIEW underlying act—consuming alcoholic beverages—is itself legal. Obviously, the legislature did not think it “absurd” to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the “life, health or comfort” of the parents born children. We see no reason such a result should be rendered absurd by the mere fact the child at issue is a viable fetus. 117 Whether the child has already been born or will be born makes no difference in the court’s eyes. 118 A parent has a responsibility not to endanger the life, health, and comfort of her/his child, before or after birth. 119 In 2011, in Alabama, Hope Ankrom gave birth to a baby boy who tested positive for cocaine. 120 InAnkrom v. State,the grand jury indicted Ankrom and she was found guilty of chemical endanger- ment of a child. 121 The indictment stated that Ankrom “did knowingly, recklessly, or intentionally cause or permit a child...to be exposed to, ingest or inhale, or to have contact with a controlled sub- stance, chemical substance, or drug paraphernalia.” 122 Alabama did not have a statute specifically criminalizing drug use while pregnant, but the state still found fetal cocaine exposure to be child abuse. 123 Similar to Whitner inWhitner v. State,Ankrom argued that the word “child” does not encompass a fetus. 124 The Alabama court analyzedWhitner v. Stateand appellate court decisions in Alabama and in other states and consulted Webster’s dictionary. It concluded that a child does in fact encom- pass a fetus.

125 V. PROPOSAL TO PREVENT NEWBORN DRUG AFFECTED HARM States should implement criminal penalties for women who give birth to a child who is born harmed by drugs. 126 State solutions for women ingesting harmful substances while pregnant cur- rently range radically from prioritizing pregnant women for drug rehabilitation to an approach that allows drug addicted mothers to constantly enter the rehabilitation system without actually having been rehabilitated. 127 Such remedies are inadequate, as they do not provide help to the baby until it is too late and the child is born with drug related problems.

The criminalization of drugs in the United States has usually worked parallel to the goals of reduc- ing drug use, crime, and dependency. 128 The basis for opposing the use of drugs generally includes the fact that drug related activity produces certain social costs in terms of deaths, diminished social productivity, increased healthcare costs, and crime. 129 Criminalization is also a tool of safety and ret- ribution. 130 Under the Tennessee statute’s affirmative defense provision, a woman who finds herself pregnant while using drugs is encouraged to seek help for herself and her soon-to-be-born child. 131 Therefore, criminal liability on pregnant substance abusers is only imposed as a last resort. 132 The carve-out defense for women in rehab serves as a deterrent and a last-minute safety net to the unborn child and the mother who wishes not to go to jail. 133 According to the Model Penal Code, assault is defined as “intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. No intent to cause physical injury needs to exist.” 134 By intentionally taking drugs while pregnant, the woman has made the con- scious choice to expose her child to reasonable apprehension of imminent harm. 135 In order to punish violators of crimes such as assault, the criminal justice system consists of three features: investigating crimes, prosecuting the accused, and guaranteeing a fair trial. 136 The goal of these features is retribu- tion, incapacitation, deterrence, and rehabilitation. 137 This proposal fits the purpose of all four goals of criminalization. A. THE TENNESSEE STATUTE AS A DETERRENT AND MOTIVATION FOR REHABILITATION The Tennessee statute exists as a deterrent. 138 Deterrence infers that fear discourages a crime. 139 The law punishes an offender in order to dissuade the public from committing this crime in the Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 101 future. The problem with creating this law as a deterrent is when the offender is not just a user, but an addict. 140 Addiction is a disease recognized by the medical community. 141 It is a brain disorder “that causes compulsive drug seeking and use, despite harmful consequences to the addicted individ- ual and to those around him or her.” 142 It is important to understand however that not all drug users are addicts. 143 The Tennessee statute can also act as a deterrent to those who are not addicted and have the control to stop. It can also deter the pregnant addict from having her baby without seeking rehabilitation treatment. B. RETRIBUTION FOR FETAL ASSAULT Although addiction is a medical disease, the initial decision to take drugs is usually voluntary. 144 Retribution appeases the moral outrage of a society by ensuring that criminal offenders are given their just desserts. 145 Through the retribution theory, criminal punishment is meant to restore justice “through proportional compensation from the offender.” 146 Taking drugs while pregnant places the fetus into imminent harm, constituting assault. 147 In order to restore justice, imposing criminal liabil- ity on such an act satisfies the retribution theory by ensuring that any woman who assaults her fetus by taking drugs faces the rational consequences. C. INCAPACITATING FETAL-ASSAULTING CRIMINALS Incapacitation includes protecting the public by getting criminals out of the community. 148 Taking drugs while pregnant imposes serious health risks on the child once s/he is born. 149 This creates a financial burden on society and creates an unhealthy society. 150 The Tennessee statute promotes the goal of incapacitation by imposing criminal penalties on those who do drugs while pregnant and refuse to seek help. 151 By default, the law removes unfit mothers from the community and prevents repeat offenses. D. PROMOTES REHABILITION FOR THE PREGNANT DRUG USER AND HER CHILD The Tennessee statute promotes rehabilitation, 152 especially if there are adequately funded treat- ment programs that are coordinated with the court system, as in Tennessee. 153 Rehabilitation calls for changing the individual lawbreaker through correctional interventions. 154 For years, scientific research has shown that “treatment is the best way to help patients addicted to drugs stop using, avoid relapse, and successfully recover their lives.” 155 Remaining in treatment for an adequate time is critical. 156 That is why the carve-out defense requires the person to successfully complete the reha- bilitation program. 157 Unfortunately, however, a study from the National Institute on Drug Abuse shows that forty to sixty percent of drug addicted patients relapse. 158 Therefore, rehabilitation alone is inadequate, as it allows a mother to continue her destructive behavior if she does not successfully complete the program.

VI. COUNTERARGUMENTS AND POTENTIAL PROBLEMS WITH THE TENNESSEE STATUTE A. EQUAL PROTECTION UNDER THE U.S. CONSTITUTION The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the states from denying to any person the equal protection of the laws. 159 It can be argued that criminal- izing pregnant drug use makes pregnant women a group that will be treated differently from other citizens in the eyes of the law. 160 Unlike crimes such as drug possession or child abuse laws, no man can ever be charged with pregnant drug use. 161 Reed v. Reedestablished that the Fourteenth 102 FAMILY COURT REVIEW Amendment creates the right to be free from gender discrimination and prevents preferential treat- ment to individuals on the basis of sex. 162 However, all classifications based on sex are not unconstitutional. 163 The equal protection clause of the Fourteenth Amendment does allow states to treat certain classes of persons in different ways, as long as the state meets a distinct level of scrutiny. 164 The law recognizes that there are differences between men and women, and legitimate accommodations for those differences are permitted. 165 Gender classifications are reviewed under intermediate scrutiny, which means that the state has the burden of proving that the discriminatory law is sufficiently related to an important government interest. 166 The Tennessee statute is not unconstitutional because it passes the intermediate scrutiny test. 167 There is a state interest in protecting newborn children from being addicted to drugs. 168 With the national rise of newborn babies addicted to drugs, the Tennessee statute combats this public health problem. 169 Because women, not men, can physiologically affect a fetus through drug use, this law is specific to women. There is exceedingly persuasive justification for the law because it is the mother’s drug use that directly harms the child.

Only a law that specifically targets the problematic behavior can effectively influence the desired result. 170 Because the problem does not include men or any other class of people aside from pregnant women, this law is constitutional. B. POTENTIALLY HARMFUL TO BABIES Opponents of the Tennessee statute are concerned with its efficacy at helping the babies at risk. 171 Specifically, it is argued that women will not get prenatal care because they will fear going to jail. 172 Instead of not doing drugs, it is thought that drug abusing pregnant women will avoid doctors at all costs to keep themselves out of trouble. 173 The intent of the law is to provide help to women who have been consumed by drugs and desire support, while punishing those who lack any remorse. 174 In many instances, it is not that pregnant drug users do not care about their children, it is that they need the threat of a criminal sanction to enter a rehabilitation program. 175 According to Governor Bill Haslam of Tennessee, the reason for the law is “to give law enforce- ment and district attorneys a tool to address illicit drug use among pregnant women through treat- ment programs.” 176 Additionally, the proposal calls for reassessment in two years, allowing officials to collect data concerning the impact on babies and mothers in the state. 177 If the health of a newborn is not enough to get the mother to seek prenatal care, the proposal’s carve-out affirmative defense for those who seek and complete a drug rehabilitation program should be the extra incentive. By providing a second-chance approach to those who truly care about a healthy future for their children, the rehabilitation part of the law does not create a fear of jail, but instead should instill a desire to avoid it. C. A WOMAN’S INDIVIDUAL PRIVACY RIGHTS: THE RIGHT TO AUTONOMY It has been argued that Tennessee Code Section 39-13-107 intrudes on a woman’s personal autonomy and reproductive rights and that fetal rights should not be advanced at the expense of women’s rights. 178 The U.S. Constitution does not specifically grant the right to privacy, but the Supreme Court has recognized that the right of personal privacy does indeed exist. 179 For example, the Fourteenth Amendment states, “no state shall...deprive any person of life, liberty, or property, without due process of the law.” 180 This concept of personal liberty is the basis of theRoe v. Wade decision. 181 The Supreme Court recognized such a fundamental right in relation to women’s rights. 182 Roe v. Wadeultimately clarified that the word “person,” as used in the Fourteenth Amendment, “does not include the unborn.” 183 Specifically,Roeheld that the constitutional “right of privacy is Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 103 broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The det- riment that the State would impose upon the pregnant woman by denying this choice all together is apparent.” 184 The protection granted inRoeremains as the foundation of freedom for American women. 185 However, a woman’s right to terminate pregnancy is not absolute and is subject to limitations. 186 “At some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.” 187 Particularly, the Court inRoe v. Wadeheld that the regulation limiting certain fundamental rights may be justified by a compelling state interest. 188 The Tennessee statute does not deny any woman the right to an abortion by Tennessee law. 189 The Tennessee statute does not intrude on a woman’s personal autonomy and reproductive rights and does not advance fetal rights at the expense of women’s rights. 190 Roe v. Wadeestablished that the state’s determinations to protect health or prenatal life are dominant and constitutionally justifi- able. 191 Women’s rights are crucial to the benefit of society, as are fetal rights and rights of a new- born. 192 There is a major state interest in protecting babies being born with NAS or other drug related issues. 193 By criminalizing pregnant drug use through the Tennessee statute, a woman still has a choice: the choice to have an abortion or the choice to give birth, the choice to take drugs or the choice not to take drugs, the choice to seek and fully commit to rehabilitation or the choice to face criminal charges. 194 D. COSTS ASSOCIATED WITH THE PROPOSAL Criminalizing pregnant drug use will create an increase in taxpayer expenditures for prisons. 195 State expenses for rehabilitation centers and foster care services will also increase. 196 However these costs will, in time, deter future offenders and reduce the number of newborns with NAS, thereby cre- ating a healthier society.

The average cost of incarcerating a prisoner in the United States varies by state.

197 For example, Indiana pays around $14,000 per inmate, while New York pays about $60,000. 198 Unfortunately, running the American prison system is expensive and has been increasingly so. 199 According to a Vera Institute of Justice study, in fiscal year 2010, the number of those incarcerated has cost the tax payer about $39 billion. 200 Rehabilitation costs are considerable as well. Pregnant women with drug addictions require a spe- cialized addiction treatment plan. 201 Non-opiate detox during pregnancy is safe for both the mother and child; difficulties arise for women who are pregnant and addicted to opiates. 202 States need to help fund facilities that specialize in pregnant drug abuse so that the woman and her child can get the proper help. 203 Methadone maintenance treatment is the standard of care for opioid-dependent preg- nant women, but Buprenorphine, which acts as an opioid receptor agonist at low doses and as either an agonist or antagonist at high doses, is also an option for medication-assisted therapy. 204 State health agencies can help optimize service delivery and treatment capacity to ensure women have access to the necessary services in a timely manner. 205 It is important to note that methadone expo- sure in utero may also result in NAS incidences, but maternal methadone doses have not been consis- tently found to correlate with the severity of NAS.

206 That is why it is so important to have a pregnant woman treated by the proper facility. 207 Already in place are federal Substance Abuse Prevention and Treatment Block Grants, which require that states set aside a certain proportion of their block grant funds for services designed for pregnant women and women with dependent children. 208 Many states have either created or funded drug treatment programs specifically targeted to pregnant women, and some even provide pregnant women with priority access to state-funded drug treatment programs. 209 Iowa, Kansas, Missouri, and Oklahoma prohibit publicly funded drug treatment programs from discriminating against pregnant women. 210 A minor increase in expenses for state foster care services is expected when a mother is impris- oned for her pregnant drug abuse. However, many states already classify prenatal drug exposure as 104 FAMILY COURT REVIEW child abuse or neglect, leaving the child in foster care nonetheless. 211 It is important to note that most children in foster care leave the system by returning to their families or being adopted. 212 In a 2009 article,Investment in Early Childhood Development Lays the Foundation for a Prosper- ous and Sustainable Society,Jack P. Shonkoff, M.D. suggests:

Early intervention can prevent the consequences of early adversity. Research shows that later interventions are likely to be less successful—and in some cases are ineffective. For example, when children who experi- enced extreme neglect were placed in responsive foster care families before the age of two, their IQs increased more substantially and their brain activity and attachment relationships were more likely to become normal than if they were placed after the age of two. While there is no “magic age” for intervention, it is clear that, in most cases, intervening as early as possible is significantly more effective than waiting. 213 A child’s environment from pregnancy to childhood affects cognitive, emotional, and social develop- ment. 214 Children require safe, stable, drug-free environments. 215 The Tennessee statute can test whether deterring and rehabilitating pregnant drug users from harming their soon-to-be newborn can actually reduce the number of babies born with NAS and drug related illnesses. This in turn will decrease state expenditures on treatment for newborns with NAS, which is about five times higher than charges for babies with normal hospital births. 216 Deterring maternal drug use can help to create a healthier society overall. The benefit of having a healthier society includes a more productive workforce, more productive schools, a less burdened health-care system, disease prevention, and increased overall happiness. 217 Investment in early child- hood development lays the foundation for a prosperous sustainable society.218 The costs associated with the Tennessee statute are minimal in comparison to the costs associated with an unhealthy, drug addicted society.

VII. CONCLUSION The best way to conquer pregnant drug abuse is for each state to implement the Tennessee statute.

After implementing it for two years, each state should then adjust the statute to reflect the needs of that state. The importance of encouraging healthy citizens in society has unlimited benefits and encouraging healthy births is a goal that should be implemented in every state.

NOTES 1. WBIR Staff & Aaron Wright,Mom Charged Under Drug-Addicted Baby Law Going to Rehab,W BIR.COM (Aug. 5, 2014, 7:45PM), http://www.wbir.com/story/news/local/mcminn-monroe/2014/08/05/woman-charged-under-drug-addicted-baby- law-to-appear-in-court/13614755/.

2.Id.

3. Nora D. Volkow,Research Report Series: METHAMPHETAMINE,U.S. D EP’TOF HEALTH AND HUMAN SERV ., N AT’L INST .ON DRUG ABUSE (2013), http://www.drugabuse.gov/sites/default/files/methrrs.pdf.

4. WBIR Staff & Aaron Wright,supranote 1.

5.Id.; Lindsay Beyerstein,Bad Medicine in Tennessee for Pregnant and Drug-Addicted Women,A LJAZEERA AMERICA (Sept. 30, 2014, 5:00 A.M.), http://america.aljazeera.com/articles/2014/9/30/tennessee-new-lawsb1391.html.

6. WBIR Staff & Aaron Wright,supranote 1.

7. T ENN .CODE ANN. § 39-13-107 (2014); Laura Bassett,Tennessee Enacts Law to Incarcerate Pregnant Women Who Use Drugs,H UFFINGTON POST , http://www.huffingtonpost.com/2014/04/30/tennessee-to-incarcerate-_n_5241770.html. (Last visited May 15, 2015) (“While the Tennessee bill is the first to actually criminalize drug use among pregnant women with poor preg- nancy outcomes, other states have been prosecuting pregnant women under different kinds of laws for years”).

8.See, e.g.,State v. Condry, No. E2013-01209-CCA-R3-CD, 2014 WL 1912349, at *1 (Tenn. Crim. App. May 13, 2014).

9. U.S. D EP’TOF HEALTH AND HUMAN SERV . (DHHS),R ESULTS FROM THE 2013 N ATIONAL SURVEY ON DRUG USE AND HEALTH :

S UMMARY OF NATIONAL FINDINGS ,Pregnant Woman,http://www.samhsa.gov/data/sites/default/files/NSDUHre- sultsPDFWHTML2013/Web/NSDUHresults2013.pdf (Last visited May 15, 2015).Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 105 10.Id.

11. Stephen W. Patrick et al.,Neonatal Abstinence Syndrome and Associated Health Care Expenditures,307 JAMA 1934 (2012).

12. Emily Crockett,Tennessee Governor Signs Bill Criminalizing Pregnant Women,RHR EALITY CHECK REPRODUCTIVE & S EXUAL HEALTH AND JUSTICE NEWS ,ANALYSIS &C OMMENTARY (Apr. 29, 2014, 5:17P.M.), http://rhrealitycheck.org/article/2014/ 04/29/tennessee-governor-signs-bill-criminalizing-pregnant-women/.

13.Id.

14. T ENN .CODE ANN. § 39-13-107 (2014).

15.Id.

16.Id.;OAG 10-69, 2010 Tenn. AG LEXIS 75 (May 20, 2010).

17. T ENN .CODE ANN. § 39-13-107 (2014).

18.Id.

19. C OLO .REV.STAT .ANN. § 19-3-102 (West 2015).

20. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997);Ex parteAnkrom, No. CC-09-395 & No. CC-08-381, 2013 WL 135748, at 1–2 (Ala. Jan. 11, 2013).

21.SeeT ENN .CODE ANN. § 39-13-107 (2014).

22.See M ATERNAL OPIATE USE AND NEWBORNS SUFFERING FROM OPIATE WITHDRAWAL ARE ON THE RISE IN THE U.S.,available athttp:// www.drugabuse.gov/related-topics/trends-statistics/infographics/maternal-opiate-use-newborns-suffering-opiate-withdrawal- are-rise-in-us (Last visited May 15, 2015).

23. Nora D. Volkow,Prescription Drug Abuse,N AT’LINST .OFDRUG ABUSE :THESCIENCE OF DRUG ABUSE AND ADDICTION (2011), http://www.drugabuse.gov/publications/research-reports/prescription-drugs/director.

24.Id.

25. Patrick et al., supranote 11.

26. DHHS,supranote 9.

27. Barry Zuckerman,Drug-Exposed Infants: Understanding the Medical Risk,1T HEFUTURE OF CHILD 26, 28 (1991) (cit- ing I NST .OFMEDICINE ,PREVENTING LOW BIRTH WEIGHT SUMMARY (1985)) (“An infant described as ‘low birth weight’ weighs less than 2500 grams at birth; a ‘very low birth weight’ infant weighs less than 1500 grams. Low birth weight is a major factor in infant mortality in the U.S. Infants weighing 2500 grams or less are almost 40 times more likely to die during their first 4 weeks of life than the normal birth weight infant. Low birth weight infants are 5 times more likely than normal birth weight infants to die later in the first year and account for 20% of post neonatal deaths. The two major contributors to low birth weight are preterm birth and intrauterine growth retardation (IUGR). Both contribute to inadequate fetal growth. A birth is considered preterm if it has a duration of less than 37 weeks from the last menstrual period. IUGR refers to low weight for a given duration of gestation.”).

28. Tatiana T.M. Doberczak et al.,Neonatal Opiate Abstinence Syndrome in Term and Preterm Infants, 118 J. P EDIATRICS 933 (1991); Patrick et al.,supranote 11.

29. Patrick et al.,supranote 11.

30. Suzanna Wong et al.,Substance Use in Pregnancy,256 SOGC C LINICAL PRACTICE GUIDELINE 367 (2011),available at http://sogc.org/wp-content/uploads/2013/01/gui256CPG1104E.pdf.

31. Patrick et al.,supranote 11.

32.Id.

33.Id.

34. Mary Masson,About One Baby Born Each Hour Addicted to Opiate Drugs in U.S., U-M study Shows,U NIV.OFMICH.

H EALTH SYSTEM (April 30, 2012), http://www.uofmhealth.org/news/babies-born-addicted-to-drugs.

35.Id.

36.See id.

37. Doberczak et al.,supranote 28.

38.SeeDeborah Jiang-Stein,I Was a Heroin Baby,T HE WASHINGTON POST , July 15, 2014, http://www.washingtonpost.

com/posteverything/wp/2014/07/15/i-was-a-heroin-baby/.

39. U.S. Nat’l Library of Medicine Medline Plus,Neonatal Abstinence Syndrome,http://www.nlm.nih.gov/medlineplus/ ency/article/007313.htm (last visited August 11, 2015).

40. Doberczak,supranote 28; Patrick et al.,supranote 11.

41.Neonatal Abstinence Syndrome: How States Can Help Advance the Knowledge Base for Primary Prevention and Best Practices of Care,A STHO (2014), http://www.astho.org/Prevention/NAS-Neonatal-Abstinence-Report.

42.Id.

43.Id.

44.Using Illegal Drugs During Pregnancy,A MERICAN PREGNANCY ASSOCIATION :PROMOTING PREGNANCY WELLNESS (Feb. 5, 2015, 2:58 PM), http://americanpregnancy.org/pregnancy-health/illegal-drugs-during-pregnancy/.

45.Id.

46.Id.

47.Id.

48.Id.

49.Id. 106 FAMILY COURT REVIEW 50.Id.

51.Id.

52.Id.

53.Id.

54.Id.

55.Id.

56.Id.

57.Id.

58.Id.

59. Rodney L. Bragg,Prescription drug abuse in Tennessee, http://tn.gov/mental/policy/persc_drug_docs/Prescrip- tion%20Drug%20Use%20in%20TN_2%203%202012_R2.pdf (last visited Nov. 12, 2014).

60.Id.

61.See generallyNAS S UMMARY ARCHIVE ,available athttp://tn.gov/health/article/nas-summary-archive (last visited Dec.

23, 2015).

62. John J. Dreyzehner,Drug Dependent Newborns (Neonatal Abstinence Syndrome) Surveillance Summary For the Week of October 26– November 1, 2014,D EP’TOF HEALTH (2014), http://tn.gov/health/article/nas-summary-archive.

63.Id.

64.Id.

65. 1989 Tenn. ALS 591; 1989 Tenn. Pub. Ch. 591; 1989 Tenn. SB 1194; 2011 Tenn. ALS 408; 2011 Tenn. Pub. Acts 408; 2011 Tenn. Pub. Ch. 408; 2011 Tenn. SB 633; 2012 Tenn. ALS 1006; 2012 Tenn. Pub. Acts 1006; 2012 Tenn. Pub. Ch.

1006; 2011 Tenn. HB 3517; 2014 Tenn. ALS 820; 2014 Tenn. Pub. Acts 820; 2014 Tenn. Pub. Ch. 820; 2013 Tenn. SB 1391.

66. T ENNESSEE PREGNANCY CRIMINALIZATION LAW (SB 1391), http://data.rhrealitycheck.org/law/tennessee-pregnancy-crimi- nalization-law-sb-1391/ (last visited Aug. 12, 2015); 2011 Legis. Bill Hist. TN S.B. 1391; T ENN .CODE ANN. § 39-13-107 & 2214 (2014).

67.Id.

68.Id.

69.Id.

70. T ENN .PREGNANCY CRIMINALIZATION LAW (SB 1391), http://data.rhrealitycheck.org/law/tennessee-pregnancy-criminaliza- tion-law-sb-1391/(last visited August 12, 2015).

71.FAQ Regarding Public Chapter 820 (PC 820) and Other Requirements Related to Neonatal Abstinence Syndrome (NAS) in Tennessee, http://health.tn.gov/mch/PDFs/NAS/NAS%20FAQs_63014L.pdf (last visited Nov. 12, 2014); T ENN .

G OV’TDEP’TOF HEALTH (June 24, 2014), http://health.tn.gov/mch/PDFs/NAS/NAS%20FAQs_63014L.pdf.

72. Jerome Eckrich & Roland Loudenburg,Answering the Call: Drug Courts in South Dakota,57S.D.L.R EV. 171, 187 (2012).

73.Id.

74.Id.

75.Id.

76.Treatments for Pregnant Women Abusing Substances,T ENN .D EP’TOF MENTAL HEALTH &S UBSTANCE ABUSE SERVICES , http://tn.gov/behavioral-health/article/treatment-for-pregnant-women-abusing-substances (last visited Dec. 23, 2015).

77. Drug and Alcohol Rehab Headquarters,Tennessee Treatment Centers,http://www.drug-rehab-headquarters.com/ten- nessee/category/5.4/ (last visited Nov. 12, 2014).

78.Id.

79. T ENN .GOV’TDEP’TOF HEALTH ,supranote 71.

80.Id.

81.See generallyDHHS,supranote 9.

82.Id.

83.See generally NAS Summary Archive,T ENN .D EP’TOF HEALTH , http://tn.gov/health/article/nas-summary-archive (last visited Dec. 23, 2015).

84.E.g.,A LA.C ODE § 12-15-102 (2015); A RK.CODE ANN. § 9-27-341 (2015); C OLO .R EV.STAT .A NN. § 19-3-102 (West 2015); F LA.STAT .A NN. § 39.806 (West 2014); 705 I LL.COMP .STAT .A NN. 405/2-3 (2015); I ND.CODE ANN. § 31-35-2-4 (West 2012); I OWA CODE ANN. § 232.116 (West 2012); L A.CHILD .CODE ANN. art. 1015 (2014); M INN.STAT .ANN. § 260C.301 (West 2013); N EV.REV.STAT .ANN. § 128.105 (West 2015); O KLA .STAT .ANN. tit. 10A, § 1-4-904 (West 2015); R.I. G EN.LAWS ANN.

§ 15-7-7 (West 2015); S.C. C ODE ANN. § 63-7-2570 (2014); S.D. C ODIFIED LAWS § 26-8A-26 (2015); T ENN .CODE ANN. § 37-1- 102 (2014); T EX.FAM.CODE ANN. § 153.131 (West 2015); V A.CODE ANN. § 16.1-283 (West 2012); W IS.STAT .ANN. § 48.981 (West 2015);see also,Guttmacher Inst.,Substance Abuse During Pregnancy,S TATE POLICIES INBRIEF (Feb. 1. 2015),available athttp://www.guttmacher.org/statecenter/spibs/spib_SADP.pdf.

85. Guttmacher Inst.Supranote 84.

86. M INN.STAT .A NN. § 253B.02 (West 2014); S.D. C ODIFIED LAWS § 34-20A-70 (2015); W IS.STAT .A NN. § 51.46 (West 2015);see also,Guttmacher Inst.,supranote 84.

87. M INN.STAT .ANN. § 253B.065 (West 2007).

88.E.g.,W IS.STAT .A NN. § 51.46 (West 2015); I OWA CODE ANN. § 125.32A (West 2015); K AN.STAT .ANN. § 65-1,165 (West 2015); M O.A NN.STAT . § 191.731 (West 2014); O KLA .STAT .A NN. tit. 63, § 1-546.4 (West 2015);see also,Guttmacher Inst.,supranote 84.Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 107 89. A LASKA STAT .A NN. § 47.17.024 (West 2006); A RIZ.R EV.STAT .A NN. § 13-3620 (2015); I LL.A DMIN .C ODE tit. 89 § 300.30 (West 2013); I OWA ADMIN .CODE r. 641-155.35 (2015); L A.A DMIN .CODE tit. 51, Pt II, § 109 (2015); M D.CODE REGS .

07.02.08.03 (2015); 105 M ASS .C ODE REGS . 157.220 (2015); M ICH.A DMIN .C ODE r. 338.361 (2015); M INN. R. 4605.7030 (2015); M ONT .A DMIN . R. 37.106.1420 (2015); N.D. A DMIN .CODE 75-09.1-10-07 (2014); O KLA .A DMIN .CODE § 340:75-1-44 (2015); R.I. C ODE R. § 31-4-18:40.0 (LexisNexis 2015); U TAH ADMIN .CODE r. 432-55 (West 2015); 22 V A.ADMIN .CODE § 40- 705-40 (2015);see alsoGuttmacher Inst.,supranote 84.

90. I OWA ADMIN .C ODE r. 641-155.35 (2015); 902 KY. A DMIN .R EGS . 20:300 (2015); M INN. R. 9530.6500 (2015);also, Guttmacher Inst.,supranote 84.

91.Parental Drug Use as Child Abuse,C HILD WELFARE INFORMATION GATEWAY , http://www.childwelfare.gov/pubPDFs/ drugexposed.pdf (last visited Nov. 12, 2014).

92.Regulation of Pregnant Women,L AW STUDENTS FOR REPRODUCTIVE JUSTICE (2014), http://lsrj.org/documents/factsheets/ 14_Regulation_of_Pregnancy.pdf.

93. Ferguson v. Charleston, 532 U.S. 67, 68 (2001).

94.Id.

95.Id.;Regulation of Pregnant Women,supranote 92.

96. 016 A RK.CODE R. § 04.6-4.00 (LexisNexis 2015); C AL.CODE REGS . tit. 22 § 50262 (2015); C OLO .REV.STAT .A NN.§ 25.5-5-309 (2015); C ONN .G EN.STAT .A NN. § 17a-710 (2015); F LA.STAT .A NN. § 381.0045 (West 2001); 20 I LL.COMP .STAT .

A NN. 301/35-5 (West 2015); 907 KY. A DMIN .R EGS . 20:050 (2013); M D.C ODE ANN.H EALTH -GEN. § 8-403.1 (West 2015); M INN. R, 4700.2210 (2015); 482 N EB.ADMIN .CODE Ch. 2-000 § 2-001 (2015); N.Y. C OMP .CODES R. & R EGS . tit. 18, § 360-3.7 (2015); 10A N.C. A DMIN .C ODE 27G.4501 (2015); O HIO ADMIN .C ODE 3793:2-3-01 (2015); O R.R EV.STAT .A NN. § 417. 728 (West 2015); 71 P A.CONS .STAT .A NN. § 553 (2015); R.I. G EN.LAWS ANN. § 42-12.3-3 (West 2015); W ASH .A DMIN .CODE § 182-533-0720 (2015); W IS.STAT .ANN. § 46.86 (2013).See alsoGuttmacher Inst.,supranote 84.

97. A RIZ.REV.STAT .ANN. § 36-141 (2016); G A.CODE ANN. § 26-5-20 (2015); K AN.STAT .ANN. § 65-1, 165 (West 2015); M D.

C ODE ANN.HEALTH -GEN. § 8-403.1 (West 2015); M O.ANN.STAT . § 208.662 (2014); O KLA .STAT .ANN. tit. 43A, § 3-417 (2015); R.I.

G EN.LAWS ANN. § 42-12.3-3 (West 2015); T ENN .CODE ANN. § 33-10-104 (West 2013); T EX.HUM.RES.CODE ANN.§32.024(West 2015); U TAH ADMIN .CODE r. R414-10 (2015); W IS.STAT .ANN. § 51.46 (West 2015).See alsoGuttmacher Inst.,supranote 84.

98. Drug and Alcohol Rehab Headquarters, supranote 77.

99.SeeT ENN .CODE ANN. § 39-13-107 (2014).

100. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997);Ex parteAnkrom, No. CC-09-395 & No. CC-08-381, 2013 WL 135748, at 1–2 (Ala. Jan. 11, 2013).

101. Guttmacher Inst.,supranote 84.

102.Id.

103.Id.

104.Id.

105.Id.; Drug and Alcohol Rehab Headquarters,supranote 77.

106. Guttmacher Inst,supranote 84; T ENN .CODE ANN. § 39-13-107 (2014).

107. T ENN .CODE ANN. § 39-13-107(a) (West 2014).

108.Id. § 39-13-107(c)(2).

109.Id. (therefore the woman is exempt from punishment if she chooses not to have the baby).

110.Id. § 39-13-107(3).

111. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997);Ex parteAnkrom, No. CC-09-395 & No. CC-08-381, 2013 WL 135748, at 1–2 (Ala. Jan. 11, 2013).

112.Whitner, 492 S.E.2d 777, at 779–80.

113.Id. at 778.

114.Id. at 778–89.

115.Id. at 781–82 (“For example, a parent who drinks excessively could, under certain circumstances, be guilty of child neglect or endangerment even though the underlying act—consuming alcoholic beverages—is itself legal. Obviously, the legislature did not think it ‘absurd’ to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the ‘life, health or comfort’ of the parents’ born children. We see no reason such a result should be ren- dered absurd by the mere fact the child at issue is a viable fetus”).

116.Id. at 781.

117.Id.

118.Id.

119.Id.

120. Ankrom v. State, No. CR-09-1148, 2011 WL 3781258 (Ala. Crim. App. Aug. 26, 2011)aff’d sub nom.withdrawn from bound volume Ex parteAnkrom, 143 So. 3d 58 (Ala. 2013).

121.Id.

122.Id.

123.Id.

124.Id.

125.Id. (“Not only have the courts of this State interpreted the term “child” to include a viable fetus in other contexts, the dictionary definition of the term “child” explicitly includes an unborn person or a fetus. In everyday usage, there is nothing 108 FAMILY COURT REVIEW extraordinary about using the term “child” to include a viable fetus. For example, it is not uncommon for someone to state that a mother is pregnant with her first “child.” Unless the legislature specifically states otherwise, the term “child” is simply a more general term that encompasses the more specific term “viable fetus.” If the legislature desires to proscribe conduct against only a “viable fetus,” it is necessary to use that specific term. However, if the legislature desires to proscribe conduct against a viable fetus and all other persons under a certain age, the term “child” is sufficient to convey that meaning. In fact, proscribing conduct against a “child” and a “viable fetus” would be redundant.”).

126. DHHS,supranote 9;seePatrick et al.,supranote 11.

127.SeeW IS.STAT .ANN. § 51.46 (West 2015).

128. Transcript of First TV Debate Among Bush, Clinton and Perot, N.Y. T IMES , Oct. 12, 1992, at A14.

129.See generallyNCADD N ATIONAL COUNSEL ON ALCOHOLISM AND DRUG DEPENDENCE ,INC.,Drugs and Crime, available athttps://ncadd.org/learn-about-drugs/drugs-and-crime (last visited Dec. 23, 2015) (stating that without question drug use and criminality are closely linked. Approximately sixty percent of individuals arrested for most types of crimes test positive for ille- gal drugs at arrest.);see generallyCtr. for Disease Control and Prevention,Prescription Drug Overdose in the United States:

Fact Sheet, available athttp://www.cdc.gov/homeandrecreationalsafety/overdose/facts.html (last visited Dec. 23, 2015) (“Deaths from drug overdose have been rising steadily over the past two decades and have become the leading cause of injury death in the United States...In 2011, drug misuse and abuse caused about 2.5 million emergency department (ED) visits. Of these, more than 1.4 million ED visits were related to pharmaceuticals.”);see generallyState of Alaska Mental Health Board & Advisory Board on Alcoholism and Drug Abuse,The Economic Costs of Alcohol and Other Drug Abuse in Alaska 2012 Update,available athttp://dhss.alaska.gov/abada/Documents/pdf/EconomicCostofAlcoholandDrugAbuse2012.pdf (last vis- ited Dec. 23, 2015) (providing lost production rates due to drug diminished capacity in Alaska).

130.See generallyNCADD N ATIONAL COUNSEL ON ALCOHOLISM ANDDRUG DEPENDENCE , INC.,Supra, note 129.

131.Id.

132.SeeKatie Zezima,The Obama Administration Does Not Approve of a Law Making it a Crime to Use Drugs While Pregnant,T HE WASHINGTON POST , http://www.washingtonpost.com/blogs/post-politics/wp/2014/07/01/the-obama-administra- tion-does-not-approve-of-a-law-making-it-a-crime-to-use-drugs-while-pregnant/ (last visited Nov. 12, 2014) (quoting Terri Lynn Weaver, Tennessee state representative, who said it targets women who are “the worst of the worst”).

133.SeeT ENN .CODE ANN. § 39-13-107 (2014).

134. M ODEL PENAL CODE § 211.1 (Proposed Official Draft, 1962).

135.Id.

136. Fr ed eric M egret,Practices of Stigmatization,76L AW &C ONTEMP .PROBS . 287 (2013).

137.Id.

138. T ENN .CODE ANN. § 39-13-107 (2014).

139. M egret,supranote 136.

140.DrugFacts: Understanding Drug Abuse and Addiction,N AT’LINST .ON DRUG ABUSE (Nov. 2012), http://www.druga- buse.gov/publications/principles-drug-addiction-treatment-research-based-guide-third-edition/frequently-asked-questions/how- effective-drug-addiction-treatment (last visited Dec. 23, 2015) (stating that “It is often mistakenly assumed that drug abusers lack moral principles or willpower and that they could stop using drugs simply by choosing to change their behavior. In reality, drug addiction is a complex disease, and quitting takes more than good intentions or a strong will. In fact, because drugs change the brain in ways that foster compulsive drug abuse, quitting is difficult, even for those who are ready to do so.”).

141.E.g., id.

142.Id.

143.Id.

144.Id.

145. M egret,supranote 136 (stating that just deserts include punishment of equal fairness and proportionality for the crime committed).See alsoMonica M. Gerber,Retributions as Revenge an Retribution as Just Deserts,26 S OC.JUST .RES.1 (2012), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id52136237.

146. Gerber,supranote 145.

147. M ODEL PENAL CODE § 211.1 (Proposed Official Draft, 1962).

148. Zvi D. Gabbay,Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices, 2005 J. D ISP.RESOL . 349, 373 (2005).

149. Doberczak et al.,supranote 28.

150.Id.

151. T ENN .CODE ANN. § 39-13-107 (2014).

152.See id.

153. Drug and Alcohol Rehab Headquarters,supranote 77.

154. M egret,supranote 136; Patrick et al.,supranote 11.

155. Nat’l Inst. on Drug Abuse,DrugFacts: Understanding Drug Abuse and Addiction(Sept. 2009), http://www.druga- buse.gov/publications/drugfacts/treatment-approaches-drug-addiction.

156.Id.

157.See generally, e.g.,Patrick et al.,supranote 11 (explaining the standard rehabilitation program for pregnant opioid dependence: “Methadone is intended to prevent withdrawal and reduce the risk of accidental overdose by providing a stable dosing regiment supervised by health care professionals. By enrolling in methadone programs, pregnant women are given theGaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 109 added benefit of improved access to the health care system, including drug treatment, obstetric, and medical care. Despite acceptance into the health care system, women enrolled in methadone treatment programs continue to have higher rates of adverse maternal and neonatal outcomes than the general population, likely related to their underlying medical and social cir- cumstances than treatment programs alone. Treatment with methadone requires intensive antepartum management, consisting of obstetric management, substance abuse counseling, as well as the evaluation and treatment of medical comorbidities such as psychiatric disorders, hepatitis C, human immunodeficiency virus/AIDS, and psychosocial risk factors (alcohol and tobacco use). Relapse and continued illicit drug use is common and many coexisting psychosocial risk factors fail to be addressed. Dur- ing the last several years, buprenorphine has emerged as an alternative to methadone for narcotic replacement therapy. A recent randomized, double-blind trial found that newborns whose mothers were treated with buprenorphine required 89% less mor- phine and spent 43% less time in the hospital. Possible advantages to buprenorphine include patient-administered dosing, which relieves patients from daily visits to outpatient methadone distribution clinics and has the potential to decrease health care utilization and costs.”).

158. N AT’LINST .ON DRUG ABUSE ,PRINCIPLES OF DRUG ADDICTION TREATMENT :AR ESEARCH -BASED GUIDE (3d ed.).

159. U.S. C ONST . amend. XIV.

160.See generally,16B Am. Jur. 2dConstitutional Law§ 877 (2015).

161.Id.

162. Reed v. Reed, 404 U.S. 71 (1971).

163. Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, (1981) (“Legislature may not make overbroad generaliza- tions based on sex which are entirely unrelated to any differences between men and women or which demean ability or social sta- tus of affected class, but, because equal protection clause does not demand that a statute necessarily apply equally to all persons or require things which are different in fact to be treated in law as though they were the same, statutes are valid where gender classifi- cation is not invidious, but rather realistically reflects the fact that sexes are not similarly situated in certain circumstances”).

164. Reed v. Reed, 404 U.S. 71 (1971).See alsoU.S.C.A. Const. Amends. 14.

165. Zvi D. Gabbay,Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices, 2005 J. D ISP.RESOL . 349, 373 (2005).

166.See, e.g., Engineering Contractors Ass’n v. Metropolitan Dade County, 122 F.3d 895, 908 (11th Cir. 1997) (finding that “intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases”).

167.SeePatrick et al.,supranote 11;see generallyT ENN .CODE ANN. § 39-13-107 (2014).

168. See Patrick et al.,supranote 11.

169.Id.

170.Id.

171. Letter from Lynn M. Paltrow, Exec. Editor, National Advocates For Pregnant Women, Letter to Bill Haslam, Gover- nor of Tenn. (Apr. 17, 2014),available at,http://advocatesforpregnantwomen.org/NAPW%20Letter%20to%20Haslam.pdf.

172.Id.

173.See generallyhttp://rhrealitycheck.org/article/2014/10/16/pregnant-texans-charged-crimes-dont-exist/ (last visited Dec.

23, 2015).

174.Id.

175.Id.

176.Id.

177. T ENN .CODE ANN. § 39-13-107 (2014).

178.SeeLetter from Lynn M. Paltrow to National Advocates For Pregnant Women,supranote 171.

179. Roe v. Wade, 410 U.S. 113, 153 (1973).

180.Id.

181.Id.

182.Id.

183.Id. at 158.

184.Id.

185.Id.

186.Id. at 728.

187.Id. at 727.

188.Id.

189. T ENN .CODE ANN. § 39-13-107 (2014).

190.Id.

191.Roe, 410 U.S. at 156.

192.Id.

193.Id.

194.Id.

195.SeeChristian Henrichson,The Price of Prisons: What Incarceration Costs Taxpayers,V ERA INSTITUTE OF JUSTICE , http://www.vera.org/pubs/special/price-prisons-what-incarceration-costs-taxpayers (last visited Dec. 23, 2015) (stating that the cost of prisons was $39 billion in fiscal year 2010). 110 FAMILY COURT REVIEW 196.See generallyASTHO,Neonatal Abstinence Syndrome: How States Can Help Advance The Knowledge Base For Pri- mary Prevention And Best Practices of Care,A SSOCIATION OF STATE AND TERRITORIAL HEALTH OFFICIALS , http://www.astho.org/ Prevention/NAS-Neonatal-Abstinence-Report/ (last visited Dec. 23, 2015).

197. Henrichson,supranote 195.

198.Comparehttp://www.vera.org/files/price-of-prisons-indiana-fact-sheet.pdf (last visited Dec. 23, 2015) (“in fiscal year 2010, the Indiana Department of Correction (IDOC) had $562.2 million in prison expenditures.”),withhttp://www.vera.org/ files/price-of-prisons-new-york-fact-sheet.pdf (last visited Dec. 23, 2015).(“in fiscal year 2010, the New York Department of Correctional Services (DOCS) had $2.7 billion in prison expenditures.”).

199. Henrichson,supranote 195.

200. Henrichson,supranote 195.

201.See generallyRobery Brooner,Center for Addiction and Pregnancy (CAP),J OHNS HOPKINS MEDICINE , http://www.

hopkinsmedicine.org/psychiatry/bayview/medical_services/substance_abuse/center_addiction_pregnancy.html (last visited Dec. 23, 2015).

202. C. Dorsey,Addiction During Pregnncy,N EW DIRECTIONS FORWOMEN , (Aug. 13, 2012), http://www.newdirectionsfor- women.org/addiction-during-pregnancy/.

203.See generallyASTHO,supranote 196.

204.Id.

205.Id.

206.Id.

207.Id.

208.Id.

209. 016 A RK.CODE R. § 04.6-4.00 (LexisNexis 2015); C AL.CODE REGS . tit. 22 § 50262 (2015); C OLO .REV.STAT .ANN.§ 25.5-5-309 (2015); C ONN .G EN.STAT .A NN. § 17a-710 (2015); F LA.STAT .A NN. § 381.0045 (West 2001); 20 I LL.COMP .STAT .

A NN. 301/35-5 (West 2015); 907 KY. A DMIN .R EGS . 20:050 (2013); M D.C ODE ANN.H EALTH -GEN. § 8-403.1 (West 2015); M INN. R, 4700.2210 (2015); 482 N EB.ADMIN .CODE Ch. 2-000 § 2-001 (2015); N.Y. C OMP .CODES R. & R EGS . tit. 18, § 360-3.7 (2015); 10A N.C. A DMIN .C ODE 27G.4501 (2015); O HIO ADMIN .C ODE 3793:2-3-01 (2015); O R.R EV.STAT .A NN. § 417. 728 (West 2015); 71 P A.CONS .STAT .A NN. § 553 (2015); R.I. G EN.LAWS ANN. § 42-12.3-3 (West 2015); W ASH .A DMIN .CODE § 182-533-0720 (2015); W IS.STAT .ANN. § 46.86 (2013).See alsoGuttmacher Inst.,supranote 84.

210.E.g.,W IS.STAT .A NN. § 51.46 (West 2015); I OWA CODE ANN. § 125.32A (West 2015); K AN.STAT .A NN. § 65-1, 165 (West 2015); M O.A NN.STAT . § 191.731 (West 2014); O KLA .STAT .A NN. tit. 63, § 1-546.4 (West 2015);see alsoGuttmacher Inst.,supranote 84.

211. N EONATAL ABSTINENCE SYNDROME :H OW STATES CAN HELP ADVANCE THE KNOWLEDGE BASE FOR PRIMARY PREVENTION AND BEST PRACTICES OF CARE (2014), http://www.astho.org/Prevention/NAS-Neonatal-Abstinence-Report/.

212. Carl Vogel,Extending Foster Care,T HEUNIV.OFCHICAGO SCHOOL OF SOCIAL SERV .A DMIN ., https://ssa.uchicago.edu/ extending-foster-care (last visited Dec. 23, 2015).

213. James J. Heckman,Invest in the Very Young,E NCYCLOPEDIA ON EARLY CHILDHOOD DEVELOPMENT , http://research4chil- dren.com/data/documents/EarlyChildhoodDevelopmentFullReportpdf.pdf (last visited Dec. 23, 2015).

214.Id.

215.Id.

216. DHHS, supranote 9.

217. Heckman,supranote 213.

218.Id.

Alexana Gaspari, J.D., is a 2015 graduate of the Hofstra University School of Law. While in law school she was the 2015 winning competitor of the Hofstra Law Dispute Resolution Negotiation Competition, and she also competed regionally in the Saul Lefkowitz International Trademark Association Moot Court Competi- tion in both her second and third years. She earned the Intellectual Property Honors Concentration and at graduation she won the award for Outstanding Excellence in the field of Intellectual Property as well as the Bronze Award in Public Service. She has assisted publications in the Federation of Defense and Corporate Counsel’s 2013 Insurance Institute, and in Gordon & Rees, LLP’s Environmental & Toxic Tort Defense Insight. She holds a bachelor of science degree in biology, magna cum laude, from the New York Institute of Technology (NYIT). At NYIT she was a student athlete on the tennis team and the founder of the school’s organization “Il Circolo Italiano.”Gaspari/INHERITING YOUR MOTHER’S EYES, HAIR, AND DRUG ADDICTION 111 Copyright ofFamily CourtReview isthe property ofWiley- Blackwell anditscontent may not becopied oremailed tomultiple sitesorposted toalistserv without thecopyright holder's express writtenpermission. However,usersmayprint, download, oremail articles for individual use.