82 Tenn. L. Rev. 745 (2014-2015)
Denying the Dyad: How Criminalizing Pregnant Use Harms the Baby, Taxpayers and Vulnerable Women

handle is hein.journals/tenn82 and id is 761 raw text is: DENYING THE DYAD: HOW CRIMINALIZING PREGNANT DRUG USE HARMS THE BABY, TAXPAYERS AND VULNERABLE WOMEN MELISSA BALLENGEE ALEXANDER* INTRODUCTION................................. .......... 746 I. BACKGROUND AND HISTORY ..................... .......751 A. Defining the Problem: Rising Drug Use and NAS ..........751 B. Intertwined Histories: Fetal Rights and Assault Liability . 755 II. LAW EXPRESSLY AUTHORIZES PROSECUTING PREGNANT DRUG USERS FOR ASSAULT ............................. .....759 A. Personhood, Abortion, and Criminal Liability for Assault Imposed On a Pregnant Woman at 'Any Stage of Gestation . ................................... 760 B. Ignoring the Primary Driver of Increasing NAS Births.....763 C. The Illusory Affirmative Defense Fails to Account for Lack of Available, Affordable, and Appropriate Treatment .... 766 1. The Affirmative Defense Should Protect Women Who Seek Treatment, Not Only Those Able to Obtain It...... 766 2. The Affirmative Defense Should Protect Women Who Seek Treatment, Even If They Enroll After Giving Birth ............................ ........ 768 D. An Underreported Amendment Creates Broad, Undefined Liability..................... ............... 770 III. CRIMINALIZING PREGNANT DRUG USE FAILS TO SERVE CRIMINAL LAW OBJECTIVES ....................... .....773 A. Restoration Fails: The Statute Is Not in the Baby's Best Interest .......................... ............. 773 1. An Incentive to Abort. .................. ......774 2. A Dangerous Deterrent to Prenatal, Postpartum, and Newborn Care ........................ ..... 777 3. Because Demand Exceeds Supply, No Net Treatment Benefit ......................... ........ 778 4. Undermines the Baby's Family........... ......779 5. Imposes Economic Hardship on the Baby..................781 Associate Professor of Law, University of Wyoming College of Law; B.A. Yale University; J.D., University of Virginia School of Law. With gratitude to Professor Linda Fentiman for her thoughtful comments on my draft and special thanks to Alex Wood Davenport, Craig Stewart, and Alexandra Birkner for invaluable research assistance. Also, thanks to Belmont University College of Law for a research grant.

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