Two important bills are on the desk of Tennessee Governor Bill Haslam, waiting to be signed into law. One proposes to bring back the electric chair as the standard method of execution, should lethal injection drugs prove unavailable. The other would allow for criminal assault charges to be brought against women who use illegal narcotics while pregnant, should their drug use result in the death of their fetus or the birth of a child who is “addicted” or otherwise harmed by drugs.
It may seem like there’s no relation between these two bills. Or if they are related, it’s because they contradict one another: one is pro-death, while the other is pro-life. But since most pro-lifers also support capital punishment, there must be a way of reconciling this apparent contradiction. The narrative goes something like this: The fetus is an innocent life, infinitely valuable, and deserving of state protection at all costs. The prisoner on death row has taken an innocent life and so forfeited his or her own right to life; the state is therefore permitted, and perhaps even morally obligated, to destroy their life for the sake of protecting the innocent. Likewise, when a pregnant woman endangers, or seems to endanger, the life or well-being of her fetus, she joins the ranks of the guilty; the state is entitled, and perhaps even obligated, to punish such women for the sake of protecting innocent life.
This narrative smacks of white knights and paternalism. It also smacks of biopower and state racism. It’s what allows people like Mike Huckabee and Sarah Palin to compare abortion to slavery, as if a woman’s right to terminate her pregnancy were comparable to “own[ing] another human being and hav[ing] full control even to the point of life and death over that other human being” (HuffPo – see also my analysis of the abortion = slavery meme in “The Most Dangerous Place“). No matter that the women who are most likely to be targeted for state punishment and control may have actually descended from slaves. The logic of white knight biopower frames such women as examples of sovereignty-out-of-place, endowed with a monstrous power to kill the fetus – the emblem of innocent life – or to let it live.
This logic also underwrites SB 1391, which – if signed into law by Gov. Haslam – would radically extend the state’s power to criminalize pregnant women (for more information, see Reality Check, The Guardian, The New York Times, The Daily Beast). Rep. Terri Lynn Weaver (R-Lancaster) sponsored SB 1391. According to Weaver, the bill is meant to act as a “velvet hammer” for “the worst of the worst” (Tennessean) — by which she means “hardcore addicts” who use “cocaine and heroin” while pregnant (HLNTV).
(Weaver has apparently not heard about the meth epidemic in rural Tennessee. Nor has she paid attention to recent studies showing that poverty has a more detrimental effect on child development than prenatal drug use. But I imagine she has come across a self-help guide called The Velvet Hammer, which defines the term as “a woman leader who can manage with grace and eloquence and still get things done.” Which raises the question: How do (white, middle-class) women establish themselves as political leaders with a legitimate claim to sovereign power, if not by framing other women as monstrous, illegitimate sovereigns and punishing them with a velvet hammer?)
Weaver supports her bill with emotional expressions of maternal care and suffering: “I’ve held and rocked these babies. I just want to bawl, I just want to cry. It’s wrong… These babies are meant to come into the world addicted to mommy’s milk, not cocaine or heroin” (HLNTV).
She attributes similar emotions to state law enforcement officers: “It’s heartbreaking if you’re a police officer, and you see a woman is seven or eight months pregnant and shooting heroin. There is an individual inside that belly that has no choice but to take whatever goes into it” (Daily Beast).
As long as it remains “inside that belly,” the fetus – understood as an “individual” with “no choice” – is in a most dangerous place. Weaver explains: “Here’s the double standard. If I hit a lady who’s pregnant and they’re both [mother and fetus] killed, that’s two counts of homicide. But a woman who is pregnant can stab herself in the stomach and hurt her baby and not be charged with anything… [The Safe Harbor Act] made a woman who was pregnant above the law” (Daily Beast).
The Safe Harbor Act of 2013 is one of the more progressive pieces of legislation to come out of Tennessee in recent years (but unfortunately, there isn’t much competition). According to Reality Check, the act “created incentives to get pregnant women who use drugs into treatment programs, and guaranteed that so long as the women continued their treatment, their newborns would not be taken away by the Department of Children’s Services solely because of their drug use.”
The Safe Harbor Act was passed in response to a dramatic rise in cases of Neonatal Abstinence Syndrome, or NAS, in Tennessee (TN Health). NAS refers to a cluster of symptoms similar to withdrawal, which are observable in some newborn infants. According to Weaver, infants with NAS “look like Gerber babies but their whole mechanics are twisted, and they’ll never be the same.” But according to medical experts such as Dr. Kathy Hartke of the American College of Obstetricians and Gynecologists, the effects of NAS are temporary and reversible (Daily Beast).
In any case, the Safe Harbor Act only applies to women who abuse prescription drugs, and not to women who use illegal drugs (TNMed). The main sponsor of Safe Harbor, Sen. Ken Yager (R-Harriman) – who, incidentally, is the same person who sponsored the bill to bring back the electric chair – explained that he restricted the scope of the bill in order to target “a small population. A law that is too broad, he said, could make so many pregnant mothers eligible that preventive treatment costs would sink the effort altogether” (Tennessean).
It would be hard to find a clearer expression of the biopolitical logic of white knight paternalism, which is ultimately a logic of eugenics and social death. In a nutshell: The state recognizes a public health problem and, in the words of Health Commissioner John Dreyzehner, it recognizes that “We cannot arrest our way out of the problem” (Tennessean). In Yager’s own words, “We’ve got to give people an incentive to get cleaned up” (Tennessean). But the state also recognizes that solving problems costs money, and it worries about wasting money on those whose lives seem unlikely to contribute to the state’s overall health and prosperity. So it introduces a biopolitical cut between the deserving and the undeserving, the innocent and the guilty, the pill-poppers and the “hardcore addicts.” It offers Safe Harbor, positive incentives, and treatment to the former, and uses the hammer (velvet or otherwise) of criminalization, arrest, incarceration, and possible termination of parental rights on the latter.
If signed into law, Weaver’s SB 1391 would shore up the boundaries of the Safe Harbor Act by both excluding illegal drug users from protection under the law and also exposing them to further criminal assault charges, should anything go wrong during their pregnancy. This logic of excluding a group of people from protection under the law, while exposing them to disproportionate punishment, is precisely the structure of what Colin Dayan calls civil death, and which she traces through the history of slavery, incarceration, and torture in the War on Terror.
Wally Kirby, executive director of the Tennessee District Attorneys General Conference, explains the rationale for excluding illegal drug users from access to safe harbor from the perspective of law enforcement: “We don’t have any problem with these mothers trying to get treatment and trying to get help, but if we have a child that’s damaged because of this drug injection, or stillborn, we need the ability to prosecute these ladies” (Tennessean).
Whether identified as “these ladies” or “that belly,” Women of Color and/or poor women are most likely to be prosecuted under the new law. To make matters worse, it’s not even clear that Tennessee has the infrastructure to allow women to comply with the alternative of seeking drug treatment to avoid facing criminal charges for the assault of their fetus. According to The Guardian, “There are 177 addiction treatment centres in Tennessee, but only two offer prenatal care on site. Only 19 provide any services for pregnant women.” This double jeopardy of being ordered to seek treatment in a situation where there is no meaningful access to treatment, then being punished for “failing” to get help, is a decades-old problem that has been analyzed in detail by engaged scholars such as Dorothy Roberts and Rachel Roth. It also brings to mind Malcolm X’s critique of “a society that will crush people, and then penalize them for not being able to stand up under the weight.”
There’s much more to say about all of this, but I’ll close by urging you to sign the petition asking Gov. Bill Haslam to veto SB 1391, and to share this petition with everyone you know, asap:
https://action.rhrealitycheck.org/page/s/gov-haslam-veto-pregnancy-criminalization-sb-1391
I also urge you to support Sister Reach, a grassroots organization for reproductive justice based in Memphis, Tennessee, and Healthy and Free Tennessee, a coalition for sexual health and reproductive freedom.
I will follow up on the related issue of bringing back the electric chair in the week to come. In the meantime, let’s ask ourselves: What would the Free Alabama Movement make of SB 1391? And what would it take to free Tennessee, too?
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