Should Expectant Moms Who Test Positive For Drugs Go to Jail?

Tennessee's law criminalizing drug use during pregnancy arbitrarily heaps punishment on reviled women.

Meth babyGiven the link between alcohol consumption during pregnancy and birth defects, should expectant mothers who drink be arrested for assault? If not, it is hard to see why Mallory Loyola was.

Loyola, who was arrested last week after giving birth to a baby girl who tested positive for amphetamine, is the first person to be charged under a new Tennessee law that criminalizes drug consumption by pregnant women. The law, ostensibly aimed at protecting children, is really about punishing what a chief sponsor described as "the worst of the worst": women who not only consume arbitrarily proscribed intoxicants but do so at a time when they are supposed to be thinking only of their future babies.

Loyola, a 26-year-old from Madisonville who according to police admitted smoking methamphetamine a few days before giving birth, may not be an obstetrician's idea of a model patient. But since failure to follow prenatal advice is not usually considered a crime, her treatment can be understood only in light of the arbitrary distinctions drawn by the war on drugs.

Because of the well-established connection between heavy drinking and birth defects, doctors in the United States (though not in other countries) generally recommend that pregnant women err on the side of caution by abstaining completely from alcohol. Yet while an expectant mother who drinks a glass of wine in public might attract glares from busybodies, she probably will not attract attention from the police.

By contrast, there is no clear link between the drug Loyola consumed and birth defects in humans. According to the American College of Obstetrics and Gynecology, there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine."

The Food and Drug Administration puts methamphetamine (a.k.a. Desoxyn) and other amphetamines (e.g., Adderall) in Pregnancy Category C, meaning "animal reproduction studies [using doses much higher than people generally take] have shown an adverse effect on the fetus," but "there are no adequate and well-controlled studies in humans." Doctors will prescribe drugs in Category C, which include antidepressants such as Prozac and Zoloft, for pregnant women if they believe the benefits outweigh the risks.

Women do not go to jail for taking Prozac during pregnancy, even in Tennessee. So what was the basis for the assault charge against Loyola, which is punishable by up to a year in jail?

Meth babyThe law under which Loyola was charged, which took effect at the beginning of the month, authorizes "prosecution of a woman for assault…for the illegal use of a narcotic drug…while pregnant, if her child is born addicted to or harmed by the narcotic drug." Monroe County Sheriff Bill Bivens apparently was so eager to break in the new law that he did not realize methamphetamine does not qualify as a "narcotic drug" in Tennessee, which defines the term to include opiates and (oddly) cocaine but not other stimulants.

Another problem with the case against Loyola: An assault charge in this context requires "bodily injury." As Lynn Paltrow, executive director of National Advocates for Pregnant Women, told ThinkProgress, "There's no injury. There's just a positive drug test."

Bivens seems to think that's enough. "It's sad when you see children who come out born into the world already addicted to drugs," he told The Tennessean.

That comment reflects a common misunderstanding about the nature of addiction. In a 2005 letter criticizing the concept of "meth babies," a group of nearly 100 physicians, researchers, and addiction specialists observed: "Addiction is a technical term that refers to compulsive behavior that continues in spite of adverse consequences. By definition, babies cannot be 'addicted' to methamphetamines or anything else."

In other words, even if Tennessee's law were correctly applied to Loyola, it would be based on an embarrassing misconception. The nonsensical rhetoric about addicted babies is aimed at concealing the fact that the law, like drug prohibition generally, seeks to punish people for actions that violate no one's rights.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    At least Sullum doesn't give you the runaround.

  • WTF||

    Jacob, Jacob, facts don't matter when sheriffs and prosecutors are trying to build their careers.

  • UnCivilServant||

    "Other - 4%"

    Did she give birth to an alien and wasn't sure if it was a good or bad thing?

  • prolefeed||

    I'm guessing that was paperwork where no entry was made for that category.

  • UnCivilServant||

    Bureaucratic error - Unpossible. Besides, what fun is that?

  • Almanian!||

    I think it's 4% "Exhibited Signs of Superpowers and Possible Superhero Makeup".

    That's what I choose to believe.

  • gaoxiaen||

  • ||

    Other - 4%*

    *The other 4% denotes spouses and children of local and state government workers that were not tested for drugs under the FYTW clause of their husband or father's union contract.

  • AlmightyJB||

  • Mickey Rat||

    "...women who not only consume arbitrarily proscribed intoxicants but do so at a time when they are supposed to be thinking only of their future babies."

    ZPutting aside the wisdom of the law or having this particular drug on it, the babies are not "future", they are present in the here and now. If they were not, taking alcohol would not be damaging.

  • Brett L||

    FETUSES! Jesus, are you trying to start a war, here?

  • Vincent Milburn||

    You can kill 'em, but government forbid cause birth defects.

  • Almanian!||

    "My baby girl name be Thalidomide. We call her 'Thali' for short."

  • WTF||

    And here's her sister, Acetaminafin!

  • Ted S.||

    Is turning off the comments for the Brickbats a new thing? Is it going to be regular?

  • UnCivilServant||

    What use is that, we'll just complain in the next available thread.

  • Almanian!||

    I'm sick and tired of everyone complaining on HyR, and I will open the bidding to begin complaining about complainers!

  • UnCivilServant||

    People who complain about complainers are worse than trolls. Where are we supposed to vent of not online?

  • ||

    On street corners of course

  • UnCivilServant||

    I'd be mistaken for a street crazy and beaten up by cops.

  • Almanian!||

    You'll be lucky if they don't shoot you.

  • Ted S.||

    You'd be no crazier than the rest of the government-sector workers in Albany.

  • Ted S.||

    Meet the new complainers, same as the old complainers.

  • Almanian!||

    I noticed that, too. Reason.com - u suck.

  • ||

    Perhaps they shut it off in anticipation of the flood of sheepfucking comments.

    Their legal counsel probably closed it instead of the editor.

  • UnCivilServant||

    Well, it would explain why the kiwis are not raping human women.

  • ||

    Q: What's the difference between Mick Jagger and a Scotsman?
    A: Mick Jagger says, "Hey, you, get off of my cloud!"
    The Scotsman says, "Hey, McCloud, get off of my ewe!"

  • ||

    Q: What is the smallest organ in a sheep?
    A: A Kiwi's penis.

  • Almanian!||

    Q. Why were all the Scots boys laughing at their friend when they caught him fucking a sheep?

    A. He picked the ugly one!

    HAAAAAAHAHAHAHAHAHAHAHAHA!

  • ||

    Q. What do Scottish shepherds have in common with Joel Pile?

    A. They both fuck sheep.

  • Almanian!||

    YOU MUSTN'T MENTION THE NAME OF HE WHO SHALL NOT BE NAMED!!!

    *looks about frantically*

  • ||

    Was that wrong? Was I not supposed to do that?

  • Brett L||

    Q. How do Aggies practice safe sex?
    A. They brand the sheep that kick

  • Brett L||

    Allegedly!

  • Ted S.||

    They could at least publicly state a reason why the comments are closed.

  • ||

    Probably just an oversight and all the editors are on the phone right now talking to millennials so they haven't noticed.

  • Ted S.||

    Do millennials dream of nubile young sheep?

  • Almanian!||

    Millenials ARE nubile young sheep.

    *mic drop*

  • ||

    ::exuberant applause::

  • ||

    The squirrels have escalated their campaign against the commentariat. Led by their inspiring and ruthless General Nutkin, they have seen how effective it is to randomly prevent posts, and disappear entire articles. Now, they simply remove the post box altogether and watch us thrash about in impotent rage.

    If the rest of you had joined me and voted for JW as moderator, none of this would have happened.

  • UnCivilServant||

    Nutkin was taxidermied years ago, that's why he doesn't dive for cover when under fire, nor provide mercy to the vanquished.

  • ||

    Somebody ought to put out a parody book "What To Ingest When You're Expecting".

    Parody. Self-help. One of them anyway.

  • Ted S.||

    It's a cookbook!

  • ||

    Mmmmmmmmm, pregnant junkie.
    -Homer

  • Rich||

  • ||

    Sour cream on placenta? What is this, Auschwitz?

  • sarcasmic||

    Like they had sour cream at Auschwitz.

  • Almanian!||

    With the organization abilities of the Germans, I don't doubt they kept a well stocked refrigerator just in case they needed some sour cream for baked potatoes, or placenta, or whatever.

  • ||

    You guys missed my point entirely.

    Sour cream would make no sense on placenta. Mexicans don't put it on Menudo, do they? And that's the same thing., isn't it?

  • sarcasmic||

    Mexicans don't put it on Menudo, do they?

    I don't know about Mexican Mexicans, but sour cream is a standard side dish in most Mexican restaurants.

  • ||

    Trust me, they don't put it on/in menudo.

  • sarcasmic||

    I wouldn't know. I don't eat stuff that literally tastes like shit.

  • ||

    I wouldn't either. Sorry, entrails were made to be sausage casings, not put in a soup.

  • sarcasmic||

    I've tried it, and it was like liquid cow shit.

  • Ted S.||

    Do Puerot Ricans put sour cream on menudo?

  • Ted S.||

    Or Puerto Ricans, for that matter?

  • hotsy totsy||

    When I was living there in the seventies most Puerto Ricans didn't even know what sour cream WAS. There was no Spanish equivalent, although it was in local supermarkets.

  • gaoxiaen||

    I always get mine rare. It goes well with milk, if you have access to a lactating mother.

  • Almanian!||

    Well, at least she didn't birth an ANKUR BAYBEE

  • mickeyg||

    Is it okay to do frugs or consume alcohol on the day you have an abortion?

  • pan fried wylie||

    Seriously, she can't wait till AFTER the procedure.

    If I was a pregnant woman, I'd definitely bring a 6pack to the delivery room.

    *pop* Waaaghhhhh *pop* *glug*

  • FuriousFatMan||

    put women in jail? hold women responsible for their own actions?

    NOT IN THIS COUNTRY!

    this is laughable. i'd bet a kidney that within 6 months of this law being passed that they will pass yet another law making it all a man's fault considering pregnant women can murder and get away with it.

    "well, she was mentally unstable and YOU, THE DIRTY MAN, didnt take care of her, now you are going to jail"

    "but, but... your honor, i didnt want to take away her agency"

    "SILENCE YOU SMART ASS! JAIL! NAAAAAAAAOW!

    -FFM

  • Almanian!||

    cool story, bro

  • Ann N||

    sadly its all truth. this is the valueset that is making the rules in modern america.

    establishment media is giving this bitch a pass and scrutinizing a hypothetical male pimp.

    its just as sexist in the halls of legislature/courtroom.

  • Faceless Commenter||

    I like it.

    Fetal Personhood Activist: "You pregnant women need to be more responsible. Here's a LAW that will help you along."

    Feminists: "Oh it's responsibility you want? Well here's a LAW for you!"

  • ||

    "Addiction is a technical term that refers to compulsive behavior that continues in spite of adverse consequences. By definition, babies cannot be 'addicted' to methamphetamines or anything else."

    Did physiological addiction go away? Was it ever a real thing?

    Cold sweats, cramping, shaking, vomiting, headaches... I'm not saying I know babies who have gone through this or what not. I just know that, personally, there is a very real physical component of addiction rather than just the mental/behavioral component and 100.000 Top Men saying "babies can't be addicts" doesn't really change my mind on this part of the subject.

  • pan fried wylie||

    "physiological dependence"?

  • Pulseguy||

    The doctor making this comment is splitting hairs to try to win an argument. Babies born under the influence of alcohol, heroin, and likely crack and meth have nervous systems that were damaged in utero. Maybe they aren't addicted as an adult might be addicted, but to suggest they weren't damaged is using sophistry to deflect.

  • Pulseguy||

    A doctor says babies can't be born addicted. Interesting. My wife has worked with babies who were born addicted. At least it seemed that way as they were going through all the signs of detox and withdrawal when they were born. Good to know a doctor says they can't be born addicted.

    A friend of mine was born addicted to heroin. His Mom gave him joints to calm him down by the time he was about 8. On his 12th birthday his birthday present was his first skin pop of heroin. She was a good mom. He was instantly addicted. It didn't take a year or more of off and on use to get addicted. First time. Why? Because he had been born addicted.

    Babies being born having been subjected to heroin/alcohol etc. were abused, in utero. How is that not a crime?

  • Ann N||

    when they try to scare kids that 'drugs are bad' they tell them they can become addicted by a single dose of cocaine.

    they talk out of both sides of their mouth.

  • hotsy totsy||

    To develop fetal alcohol syndrome, the mother has to be a heavy drinker. The best study, conveniently ignored by the moralists, was a British one that was referred to in Reason not too long ago. One of the conclusions was that pregnant women who consumed alcohol "lightly" or in "moderation" were healthier and had healthier babies than those who abstained.

  • grahampositive||

    Jacob, this is absolute nonsense. The issue here isn't whether or not there are empirically observed harms to the fetus due to drug exposure. The issue is that they are being exposed to chemicals known to be dangerous against their will. If I were to go around town injecting people with drugs they didn't ask for- you can bet I'd spend a sizable proportion of the rest of my life in prison.

    Suggesting that we can't prosecute for harms because we have no empirical evidence of this nature is just silly. Some things need not be tested. I have no empirical evidence that standing on the surface of Venus is bad for my health- but I don't need a scientific study to tell me I probably shouldn't do that.

  • Maloo||

    It's almost funny how paranoid people are in this country regarding drugs/alcohol and pregnancy. Not that it can't ever cause harm, but it does have to be pretty serious, consistent abuse. I swear people would have less severe reactions if you performed an abortion in the middle of a restaurant than if you had a glass of wine while pregnant.

    Even in some of the more negative scenarios, I'd wager that suffering some withdrawal symptoms shortly after birth is probably a lot less traumatic than the routine genital mutilation inflicted on so many baby boys.

  • jmomls||

    *less traumatic than the routine genital mutilation inflicted on so many baby boys*

    Total f'in BS. Not one circumsized male alive today has any traumatic memory of the procedure.

  • hotsy totsy||

  • jmomls||

    I asked this last time a story like this was published here:

    "So, it's the libertarian position that forcing another human being to do drugs that might harm them is just fine?"

    *punish people for actions that violate no one's rights*

    Human beings don't have the right NOT to be forcibly infused with drugs?

  • Ann N||

    what you fail to grasp is the subconscious motive of the abortion defense.

    it has 2 prongs. 1: justify slutty female behavior. 2: exterminate the lower class's vermin hell-spawn.

    its basically a hybrid of sexual ammorality and eugenics/population control.

    its not about women's rights over their own body, although some women will take up this cross anyway. at which point the conversation devolves into a confusing miss-mash of dishonest objections, and ineffectual rebuttals.

    the right to not be forcibly infused with drugs doesn't apply to any real motive of the pro-abortionists. of course it will fall on deaf ears.

    for the record, i want abortion to continue because liberal scum's vermin offspring would annihilate US civilization in less than 1 generation.

    but you are making rebuttals that don't even apply to the conversation. they don't disagree with you or your point, they just don't craft their motive from that sector (and they are unwilling to fashion even a temporary motive from that sector).

  • BambiB||

    More insanity from the "Just us" system.

    Consider, if a pregnant woman miscarries as a result of a car accident, it may be deemed "manslaughter". But if the woman goes down to the local clinic and terminates the pregnancy, it's legal.

    The problem is, the system plays silly buggers with the definition of when life begins. If it's at conception, then the meth mama, the drunk mama, the wayward driver and the abortion doctor all commit murder. If it's not until birth, then drunk, high, collide or aborted - it matters not.

    Most appalling is the double standard that says if a father aborts his fetus, it's murder. But if the mother aborts his fetus, it's just her "choice". Conversely, if the man doesn't want to be a father, the woman can force him to become one anyway - and pay for it. But if a woman doesn't want to become a mother, she just aborts the fetus.

    The double standard is HUGE. No one should take any woman seriously who supports this double standard… which means most women are a joke… not at all serious about equal responsibility.

  • JoeSchmoe||

    Dear Jacob Sullum,

    Hey, asshole, while debate about what constitutes a life worth protecting is certainly something that ought to be encouraged, pretending this is about anything other than that is really fucking childish.

    Also, the only illogical pillar of the libertarian platform of which I am aware is its pro choice stance. If your perspective starts from the premise that one cannot know whether a fetus is a life on par with other lives, then the only logical conclusion, assuming liberty is the premier priority for an ideal society, is a pro-life policy preference. Ceteris paribus, a life that will on average be at least as long as that of its mother will be deprived of a greater deal of utility than that of the selfish, irresponsible cunt who allowed that life to be placed inside of her.

    Go ahead and call yourself a member of the Libertarian Party if you wish, but if you're too fucking stupid to understand this problem with that party's platform, then don't you fucking dare call yourself a libertarian. You're an illogical coward, and you should stop talking.

    OK, I'm done now. Carry on.

    P.S. Obviously, none of this applies if you hate freedom. In which case, you should still stop talking, but also go fuck yourself.

  • JoeSchmoe||

    *Libertarian Party platform

  • Lorieann||

    Tennessee is in the midst of a huge epidemic of NAS (Neonatal Abstinence Syndrome) babies. Hospitals are overwhelmed. This is an attempt to stem the tide of addicted babies in agony; perhaps not the right answer but a legitimate experiment. So far as "no evidence of permanent damage" ... the author should take a look at stories such as this (there are many): http://www.dailymail.co.uk/new.....-born.html

  • jay_dubya||

    Reactions here haven't been hysterical enough. Can we have a few more personal attacks on Sullum and hair-pulling over feminist subversion of Reason please?

  • ||

    How about Sullum not write stupid shit, and then nobody will attack him for his idiocy.

    Actions have consequences. Isn't that a basic premise of Libertarian philosophy? I've been registered as Libertarian since I could vote, and what Sullum wrote here is both appalling and disgusting.

  • ||

    The right to wsing your arms ends where the next person's nose begins.

    A pregnant woman taking drugs isn't just harming herself--she is harming the unboorn child, also. This is so obvious, it shouldn't even need to be said.

    There is a difference between Libertarianism (Rights bring responsibilities) and being a libertine (What -- Me Resonsible????). Learn it, and stop complaining about laws that protect the most vulnerable from moronic mothers.

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