Bach Launches Studies of Tennessee’s Fetal Assault Prosecutions

In the fall of 2016, in response to a request from some Tennessee advocates, Wendy Bach began looking into a series of prosecutions against women in Tennessee for what was, at the time, the only law in the nation explicitly criminalizing in-utero opiate transmission as an assault against the fetus. During the two years the law was in effect, more than one hundred women were prosecuted. The initial request by advocates eventually led to an extensive empirical project that builds on Professor Bach’s prior research in The Hyperregulatory State.

The project seeks to answer three main questions; first, as a matter of demographics, of the thousands of women who engaged in conduct criminalized by the statute, who was actually prosecuted? Second, what was the disposition of these women’s cases? Finally, and crucially, as these women and their children were exposed to professionals in the healthcare, child welfare, and criminal justice settings, what discretionary decisions were made which led some women toward prosecution and others away? Bach hopes that this project will add crucial data to the ongoing national conversation about structural discrimination, opiate addiction, criminalization, and social support.