Tennessee law puts new mom in jail for drug use while pregnant

Mallory Loyola, a 26-year-old Tennessee woman, gave birth a few days ago, and was then promptly put behind bars. She was the first to be charged under a controversial new state law that allows women who use illegal drugs while pregnant to be prosecuted for assault.

Tennessee's law is the first of its kind in the United States. It went into effect in April. Loyola, charged on Tuesday, gave birth to a baby that tested positive for meth. She was taken into police custody as she was being discharged from the hospital and her bond was set at $2,000, according to local news reports.

The law was signed by Gov. Bill Haslam over objections from critics who argued it punishes women who are suffering from addiction and need help, not a criminal prosecution. The Tennessee branch of the American Civil Liberties Union wants to challenge the law in court and now that the first case is on the books it may have the plaintiff it’s seeking.

The ACLU and other objectors have raised a long list of complaints about the law. "It punishes pregnant women who decide to remain pregnant despite suffering from a substance abuse problem," Hedy Weinberg, the branch's executive director, said in an interview. Pregnant women and new mothers are unfairly being singled out when substance abuse is a problem across the board, she said.

Critics say law will deter women from getting help

The state isn't supposed to make having an addiction a crime yet that's what the law does, the ACLU contends.

The organization, and others in the women's rights and medical fields, say rather than deter women from using drugs, the law will deter women from getting the prenatal health care they need. That puts the health of the mother and child at risk, they say.

"Threatening punitive sanctions will not solve the problem. In fact, policies that threaten women with criminal prosecution and the loss of their children drive women away from health care and discourage them from seeking both prenatal and pregnancy care," said Weinberg, adding the law will foster mistrust between women and their doctors.

The law also gives far too much discretion to prosecutors and is open to abuse because it is too vague, the ACLU told the governor in a letter urging him to veto the bill. The law says an assault or homicide charge can be laid if a child is born "addicted to or harmed by" illegal drugs taken by its mother or it dies as a result of the use.

But because the law doesn’t define the type or degree of harm and any number of factors during a pregnancy can cause harm, it’s difficult to isolate which one causes a specific outcome, the ACLU argues.

The Drug Policy Alliance is another group opposed to the law and calls it "horrible public policy." A war on drugs and a war on reproductive rights collide with this law, Tamar Todd wrote on the organization’s website, and it’s an "unhappy convergence."

"Like other failed policies of the war on drugs, the prosecution of pregnant women ignores science, evidence, and health in favour of stigmatization and punishment. And it comes at a huge cost, paid primarily by women of colour, poor women, and the children of these women who will be cut off from prenatal care and perhaps removed from their families in the state’s zeal to punish their mothers," wrote Todd.

Law meant to be 'velvet hammer'

Some women smoke cigarettes and drink alcohol while pregnant too, but they aren’t being thrown in jail, Todd suggests, saying it’s certain populations who are being targeted with this law because of the kinds of drugs they use.

Defenders of the law say it is not designed to punish women. They called it a "velvet hammer" meant to encourage pregnant women to get help. The governor said it gives law enforcement another tool to respond to illicit drug use. The law is scheduled to be in effect for two years, then lawmakers can decide whether to keep it or not.

"We have too many women in Tennessee giving multiple births to drug-dependent babies," Amy Weirich, a district attorney in Memphis, was quoted as saying in the New York Times. "The focus of the legislation is not to punish these mothers. It’s to get them help for their drug addiction, using the drug courts."

Supporters point to the provision that allows for a woman to avoid conviction if she completes an addiction treatment program.

But that doesn’t satisfy critics who respond that there are not enough spaces in treatment centres for pregnant women and women with young children and treatment in a private facility is unaffordable for many who are struggling with an addiction.

The ACLU’s Weinberg said it’s distressing that Tennessee is dealing with a drug abuse problem by focusing more on punitive measures than on creating more access to treatment for women.

Drug policy, health care, and legal protections for fetuses, are all touchy and controversial topics in the U.S. and Tennessee brings them all together in one law.

Its critics hope the state is an outlier and that the idea won’t spread to other states. "The law doesn’t solve the problem," Weinberg said.