Scary New Tennessee Law Already Punishing Women for Behavior While Pregnant

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A Tennessee woman was arrested last week after she and her newborn daughter tested positive for amphetamines. She is the first person to be charged since the state’s controversial new law criminalizing the use of narcotics during pregnancy came into effect July 1. Under the law, any woman who uses drugs during pregnancy can be arrested and charged with assault if the drug use results in a miscarriage, stillbirth or birth defects.

That’s the fate Mallory Loyola is facing after admitting she smoked meth a few days before her daughter’s birth on July 6. She was arrested after the baby tested positive for the drug two days later, and she is currently in jail awaiting trial. Her daughter has not yet been taken into state custody but will likely be if Loyola cannot post her $2,000 bond.

Mallory Loyola via ABC News

Mallory Loyola was arrested after her newborn daughter tested positive for drugs.
via ABC News

Doctors, addiction experts, reproductive health groups and national medical associations — including the White House Office of National Drug Control Policy — all cautioned Governor Bill Haslam against signing SB 1391 earlier this year, citing concerns it would scare women out of seeking prenatal care or drug treatment. While Tennessee is not the first state to legally protect children from their mother’s drug use — both South Carolina and Alabama consider late-term drug use to be child abuse — it is the first to attach a jail sentence to the crime. If a woman is able to enter and stick with a drug treatment program, she can avoid jail time; if not, she faces up to 15 years in prison.

According to Salon, the state’s lack of adequate drug treatment facilities means that the law will disproportionately affect poor women and women of color, in addition to separating mothers from their children during treatment programs:

According to research from Healthy and Free Tennessee, only two of the state’s 177 addiction treatment facilities that provide on-site prenatal care allow older children to stay with their mothers while they are undergoing treatment. And only 19 of these facilities offer any addiction care specifically oriented toward pregnant women. The problem of access is further compounded by Tennessee’s current refusal of the Medicaid expansion; according to recent data, the uninsured rate for people aged 19-39 hovers around 25 percent in the state, leaving many women without reliable access to basic medical or prenatal care, much less drug treatment.

Also at issue is the language of the law, which does not specifically allow pregnant women to seek treatment with methadone or similar drugs often prescribed for narcotic addiction. Because withdrawal presents the risk of miscarriage or other problems, doctors do not recommend pregnant women detox without the use of maintenance medications. But these prescriptions, and others legally obtained during pregnancy, can also pose risks to a fetus, meaning that in many cases it is impossible to tell what contributed to or caused a birth defect.

In a state like Tennessee, which sees huge numbers of drug-addicted child births, preventing pregnant women from using drugs is truly crucial. However, the issue here isn’t whether or not someone should do drugs while pregnant, which has clear, serious effects on a child’s health. The issue is that this law criminalizes a woman’s behavior, punishing her for drug use and addiction rather than expanding her treatment options. It’s the wrong solution for the right problem.

If a Tennessee woman is addicted to drugs and becomes pregnant, she now faces a few scenarios. She can try to quit cold turkey and get prenatal care for herself and her child, if she can afford it. She can admit her drug use and seek treatment — again, if she can afford to go — knowing that if rehabilitation fails, she will face a lengthy sentence and separation from her child. She can continue using drugs and seek prenatal care, hoping her doctor doesn’t notice or report her drug use. Or she can keep using drugs and avoid the doctor altogether, exposing herself and her fetus to health problems but greatly reducing the chances of going to prison. Medical organizations categorically agree that the last option is the most likely.

The proponents of this law return again and again to the idea that it will only be used to prosecute “the worst of the worst” — women addicted to hard drugs who refuse treatment. But what kind of judgment is that even for us to make? Addiction is a complicated medical and mental issue, and using fear as a motivator hardly gives women reason to trust those who are supposed to care for them. If this law stands as it is, it will present more women like Mallory Loyola with a choice no one should ever have to make: parenthood or addiction.

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Kaitlyn lives in New York, which is the simplest answer you're going to get if you ask her where she's from. She went to journalism school and is arguably making the most of her degree as a writer and copy editor. She utilizes her monthly cable bill by watching more competitive cooking shows than should be allowed.

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  1. Couldn’t a 4th option be move to a different state? It maybe a tad costly, but at least they could avoid this pregnant person negative law?

    • That is one option but the women who will fall under the purview of this law are those unable to access drug rehabilitation, often because of cost. How should they be expected to move themselves away from any support network they might already have? It must also be mentioned that a slew of states in the south and midwest have laws that punish drug use while pregnant in child welfare hearings and/or as evidence of child abuse (it would be unfair to say it is confined to states in only the south and the midwest, there are a few states both on the west coast and in New England that have them).

    • Apparently every democrat in the Tennessee state senate voted for this measure, which makes me even more depressed then if I could exclusively blame republicans.

  2. while i usually strongly believe that treatment is preferable to punishment for drug addiction, and i definitely agree that every woman should have the choice in whether or not to be pregnant, i don’t agree that a pregnant woman has no responsibility to the fetus she is carrying. i don’t know anyone who would disagree that giving meth to a newborn baby is child abuse. why should it be any different when the drugs are given shortly before the baby is born? the problem with this law is not that it punishes women for doing horrifying things to their children – the problem is that it does not provide support for women who are vulnerable to doing so. and while i agree that the lack of support and treatment options available is a huge problem, the idea that we can’t make a moral judgement call about addicts who cannot or will not participate in treatment who also get and remain pregnant is troubling.

    “parenthood or addiction” is ABSOLUTELY a choice that has to be made. untreated drug addicts, by and large, aren’t capable of being good parents, because they are busy being drug addicts. pregnant drug addicts are virtually incapable of being good parents, because every time they use, they are forcing their vulnerable, developing child to use. if a woman chooses to bear a child, she has made a choice to be a parent (at least for a few months), and we cannot allow her to also use drugs without consequence. we have a responsibility as a society to protect children, even if that means separating them from their parents.

    i understand that this presupposes that every woman who is pregnant truly has a choice in the matter, and that this isn’t always the case, especially in a state with very limited access like tennessee. however, termination is still an option, which seems to go totally unacknowledged in this article. i’m sure that addicts seeking abortions wasn’t the intent of lawmakers, but it bothers me that there seems to be some sort of taboo about suggesting that it is often the best one for someone struggling with drug addiction. i’m certainly not suggesting that any reproductive choice should ever be mandatory – quite the opposite. i believe that people should have complete autonomy over their reproductive systems, but that with that freedom, it’s not unreasonable to also expect responsibility.

    • I don’t think the article is trying to suggest that pregnant women struggling with addiction should continue drug use throughout pregnancy with no regard to how it affects the fetus, but rather that these punitive measures are not a solution to the problem. As mentioned above, due to the new law, where women face jail time rather than fines (as many other Southern and Midwestern states already employ), women facing addiction are less likely to seek treatment for the addiction or regular prenatal care for fear of being turned over to the authorities. Compound this with the fact that these women are also often uninsured, facing poverty, or otherwise have limited access to regular healthcare, this is actually worse for the women and the unborn/newborn child, because in addition to the factors limiting access, it discourages women struggling with addiction from even trying to seek prenatal or post-partum care.

      As stated above, it is “the wrong solution to the right problem.” Further criminalizing of drug use, for pregnant women or other populations, only increases the already inflated incarceration rate. It does nothing for rehabilitation, or to mitigate drug use to begin with.

    • Hi Emma,

      I definitely understand your point here, but I think the issue is my wording rather than my argument. Certainly everyone who faces both addiction and parenthood has to make many important choices, and children absolutely deserve and have a right to an addiction-free life. However, the issue with this law is that it uses the wrong method to try to get women into treatment. Addiction is complicated and difficult, and treatment for it is often a lifelong endeavor. If a poor, scared, drug-addicted woman knows she can either complete treatment — not an easy task — or go to prison, giving up her children to a flawed care system, it is highly likely that she will avoid anyone who could report her and take her children away. That includes doctors.

      I would never advocate that someone use drugs while pregnant, and any addicted person, regardless of their parental status, should seek and receive treatment. But rather than creating incentives for those who seek treatment — things like free or reduced-cost care, childcare and accommodations during treatment, job counseling, etc. — the Tennessee government has chosen to create punishments for those who have fears, real or imagined, that prevent them from getting that treatment.

      • i think the wording of an argument is part of an argument. my issue is with the framing of the law as a measure designed to punish women for addiction, when the behavior that it is in fact designed to punish is exposing vulnerable babies to illegal, addictive drugs. of course people struggling with addiction need more resources devoted to helping them get treatment, but they also need to be held accountable for their destructive behavior. and this isn’t an either-or. we can offer more help to pregnant addicts and still say, look, working to get clean while you’re pregnant isn’t optional, and if you don’t take this help, you are going to prison for the damage you are doing to this child.

        • The problem is that we don’t offer more help to pregnant addicts, and, as the article mentions, we can’t actually do both: prosecution deters women from seeking treatment/pre-natal care (even if it is available) because folks in hospitals often test & report them to government authorities (and, surprise, woc are often targeted more for this).

          What I don’t get about this law is that we’ve been talking about this particular issue for decades, and have already had similar laws. If you are able to access it, I recommend Dorothy E. Roberts’ article “Punishing Drug Addicts who Havr Babies: Women of Color, Equality, and the Right of Privacy” (1991, Harvard Law Review). I know it’s academic and not necessarily accessible (either due to copyright or language, etc.) but it helped me understand why this punitive approach is so messed up and racist and classist.

          She specifically addresses your point about doing both:
          “Second, such prosecutions represent one of two possible responses to the problem of drug-exposed babies. The government may choose either to help women have healthy pregnancies or to punish women for their prenatal conduct. Although it might seem that the state could pursue both of these avenues at once, the two responses are ultimately irreconcilable. Far from deterring injurious drug use, prosecution of drug-addicted mothers in fact deters pregnant women from using available health and counseling services because it causes women to fear that, if they seek help, they could be reported to government authorities and charged with a crime.”

  3. I am (kind of) from Tennessee and I have mixed feelings on this. Whether or not you get jail time, if your child is born testing positive for drugs, that child will be taken away from you. That’s not an “if.” So custody issues wrt to this law don’t really matter because losing your child at least temporarily will happen anyway. My cousin was born addicted sevenish years ago, and was promptly taken into state custody. Tennessee is a fucked up place and the foster care system in TN is filled to the brim with abused/neglected kids, so TN goes waaaay out of their way to keep kids with their families so the state doesn’t have to squeeze another kid into an already tight space. I know this firsthand (I’m a former foster kid). They do provide a lot of services for families at risk of losing their children.
    I don’t know. I’m incredibly pro-choice but in-utero exposure to drugs and alcohol can fuck up a kid for life, and it’s a sign of pretty poor decision making that point to an unsafe for the child once it’s born. For the most, parents with kids in foster care don’t face charges for what they’ve done to fuck their kids up. So I’m just conflicted.

    • Tennessee actually passed a law last year guaranteeing that people who seek treatment for addiction won’t be stripped of their parental rights. This law seems to go against that — If a woman is sent to prison, her child will be put through the system — which makes it even more confusing. I agree that parents should absolutely not do drugs, both before and after birth, but the problem with this law is that it uses negative reinforcement (the fear of losing one’s children) rather than positive (easier access to care and help with childcare).

      • Grtting stripped of your parental rights and having your kids end up in foster care are actually two separate things. The law was talking about the termination of parental rights, which means your kid can’t get ADOPTED without your consent while you’re in rehab. A lot of the time, this is also true when a parent is in prison, so your kid can’t get adopted while you ‘re in prison (save a few specific situations) b/c you don’t have a chance to get your shit together in the real world while you’re sitting in a jail cell. So technically, this law is also keeping these kids from getting adopted without their biological parents’ consent–whether you believe that’s a good thing or not is beside the point.
        The thing is, if you have a drug addicted baby, you’ll lose your kid for awhile, with or without this law (at least temporarily). All this law does is throw you in jail on top of that.
        So, to recap, losing your parental rights is a whole separate situation from having your kid taken and put in foster care. When you have a kid in foster care, you retain your parental rights. Only when you don’t follow the case plan to get your kids back within something like 15-18 months do you then lose your parental rights. So before this law, hospitals call CPS when a baby tests positive for drugs and unless the mother has a damn good reason, that baby goes from the NICU to a foster home. This is true in every state, I’m pretty sure.

  4. I suppose this is an unpopular opinion, but based on the information I see here I have to agree this law. I am pro-choice and I understand that addiction is a serious thing. However, if a woman decides that she wants to go through with a pregnancy for whatever reason, she needs to take the responsibility to care for the fetus for those nine months. Doing drugs during that time is not okay. Let alone the effects they have on you, because that’s your business, the effects they have on the baby are so permanent and will make a big impact on its life. The fact that these laws are also making an effort to help addicts with rehabilitation during their pregnancy is a good thing. If these women decide not to reach out for help and a baby is born with drugs in their system and any of the health problems that come along with that, I do consider that child abuse. That woman should be punished for her actions.

    • I will say that they should make the rehab options affordable to the average person though, because that is another issue altogether. Budget is hard enough as it is when you are pregnant, especially with all of the doctor’s visits you have going on. So I do think that something should be offered to help women with low income.

    • The issue is not whether it is a good idea to abuse drugs while pregnant – obviously this is a bad thing. The issue is whether this law will have a positive or negative impact on at-risk mothers and children, and there is good reason to believe that the effects will be largely negative. If women are discouraged from seeking prenatal care because they fear being punished under this law, as medical organizations predict, then this law will have adverse health consequences.

      In addition, it is not fair that wealthier mothers are able to stay out of jail by entering rehab when lower income mothers are often unable to afford rehabilitation and/or childcare for their children while they attend rehab.

      Choosing to carry a pregnancy to term as an active drug user (of drugs harmful to the fetus – while I wouldn’t recommend it, most studies show a minimal risk of harm from marijuana use during pregnancy) is not a great idea, but punishment that does more harm than good is not an appropriate solution.

      Increased outreach to addicts, including family planning counseling (such as suggesting use of longer-term birth control options like IUDs or depo-prevera, where medically appropriate), would probably be more beneficial than increased criminal penalties.

      • I do agree with you in that there should be better birth control options and more outreach offered to addicts. These would be really good additions to this, but I don’t think just that will cut it for some people. I live in an extended family full of drug and alcohol addicts and I have learned that there are some people who can go through multiple kinds of rehabilitation and be given help for years and years and will not turn away from their addictions. For some people, even top notch rehab and a large amount of support from people who care about you won’t even do anything, because addiction is a nasty thing.

        I do think that these other options should be out there for everyone, and there should be more outreach for the people in need. But if someone is being offered all this help, and they keep using when they are carrying a child that is not very forgiveable. I have a cousin with fetal alcohol syndrome that is now twelve years old and she has a lot of issues and will never be able to live a normal life. Drugs and child abuse are both illegal for very good reasons and using while pregnant falls under both of those categories for me. It should not just be overlooked.

        • You make some good points, and I’m not trying to minimize the potential harm done to child exposed to drugs or exaggerate the efficacy of rehabilitation. But the question is, will putting addicted mothers is jail actually help anyone, or will it just encourage people to avoid healthcare? I know many disagree, but to me, purely retributive punishment has no valid purpose – if a particular punishment benefits neither the offender nor society it should not be used.

          The war on drugs has done very little to combat drug addition so far and has had many negative consequences, particularly for lower income communities and communities of color. I see no reason to believe that this measure will be any more effective. The US already incarcerates a higher percentage of our population than any other country in the world, and yet violence and addiction remain common problems. We shouldn’t keep pursuing the same ineffective strategies and then complaining when things don’t improve.

  5. I’m seeing a lot of people making the point that this law makes it easier for wealthier mothers to stay out of jail, but I’m wondering what the consequences are for not being able to pay the fine that used to be the punishment. Isn’t a financial penalty just as bad about giving wealthier mothers an advantage?

  6. Agreeing that it’s the wrong solution to the right problem. Not sure forcing anyone into rehab would work, but I definitely think that compulsory, effective (I.e., not some shitty attempt at locking people up) rehab should be rolled out for pregnant women.

    Plus reforms to the foster care system – not enough effective care and too many kids left in shitty homes.

  7. This article pretty much covers it. If you are gonna carry a baby to term you have a responsibility to make sure that it is as healthy as you can make it under your circumstances but that doesn’t mean threatening women with a 15 year jail sentence is a good idea. If they plan to prosecute women for drug use during their pregnancy, they should set aside space in rehab centres specifically designed for those women and their children to teach them basic parenting skills whilst they detox properly. That way you end up with drug free functioning parents who are an asset to their kids rather than a distraught woman in prison and a child thrown into the social system. Even if republicans can’t be prevailed upon to see the humanitarian argument, in the long term it is more economical.

  8. I find the mother’s loss of autonomy alarming. At what point does being pregnant change your rights? Most states criminalize drug possession, not use, so the criminal act here is pregnancy. In Tennessee, new stats suggest that about 42% of the mothers of babies with NAS used drugs legitimately prescribed. (More evidence of poor prenatal care) So the drugs are legal. But they become illegal if you’re pregnant? What about all the other prescription drugs/OTC drugs with a warning? (And remember that drug studies are rarely done on pregnant women because of ethics). What about the drugs/alcohol consumed before a woman knows she’s pregnant? What about the hotdog eaten in the third trimester that gives the mom and the baby listeriosis and the baby doesn’t survive? What about smoking? Are pregnant women a special class, subject to a different set of laws? I feel like this law opens a door that Margaret Atwood has taken us through already.

    (No one wants babies to be unhealthy, which is why obstetricians have fought this type of law in other states. It prevents good care. But prison after the fact isn’t good medicine.)

  9. Yeah, I’ going to join the unpopular opinion bandwagon. I’m pro choice, but I believe once you choose to carry a fetus you are responsible for it. Taking drugs while pregnant is abuse. If you were addicted to meth and abused your two year old, you would be violating a law regardless of addiction. This isn’t any different to me and I’m happy there are more laws popping up to protect children from parental drug use, such as not being allowed to smoke in cars with kids (OR).

    • You aren’t exempt from what you do because of addiction or any other mental health problem. You would be tried for a conviction and the outcome would depend on your case. Having an addiction does not stop CPS from removing children from the home, nor does it automatically dismiss a charge of neglect or abuse.

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