Don't Put Meth Moms in Jail

Tennessee's criminalization of drug use during pregnancy is bad law and bad science.

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Given 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 in July 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 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 U.S. generally recommend that pregnant women err on the side of caution by abstaining 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 Category C drugs, 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?

The law under which Loyola was charged 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. 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.

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist. Copyright © 2014 Creators Syndicate Inc.

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  1. Let’s just legalize murder, while we’re at. And child sex slavery.

  2. Unless you are going to declare abortion murder, it is insane to arrest a woman for anything she does while pregnant. Either the fetus is a life or it is not. If it is, then abortion is murder. If it isn’t, then no one can be guilty of committing a crime against it.

    Beyond that, this is where hospitals and doctors ought to step in and engage in civil disobedience. Those tests can only be used in court if the hospital gives them to the government.

  3. Amphetamines are legal. I hope she has a lawyer.

    1. Whoops, I missed this part: “Loyola, a 26-year-old from Madisonville who according to police admitted smoking methamphetamine a few days before giving birth”

      Can’t blame it on the ADD meds when you make confessions like that.

      1. Whoops, I missed this part: “Loyola, a 26-year-old from Madisonville who according to police admitted smoking methamphetamine a few days before giving birth”

        The new morality police have this one all wrong. Somewhere, there has to be a male who is responsible for this calamity. All this woman and her lawyer need to say is that she has now changed her mind about whether that sex was consensual and decided that it wasn’t. Therefore, there is some male out there somewhere who now needs to be arrested for rape, giving drugs to children, and probably attempted murder.

      2. This was my thought though, when the article mentioned Prozac. Would she have been arrested if she’d said she was taking her ADHD meds? You test positive for the same metabolites as with meth.

  4. Abortion thread!!!

    1. Not really. You can think however you like about abortion and still see the irrationality of this.

      1. I was just hoping to egg on some commentor on commentor violence. My personal opinion on this is exactly the same as your opinion above, “Unless you are going to declare abortion murder, it is insane to arrest a woman for anything she does while pregnant. Either the fetus is a life or it is not. If it is, then abortion is murder. If it isn’t, then no one can be guilty of committing a crime against it.”

        1. I tried to flag you down yesterday. King Taco’s 40th anniversary today. $.50 tacos all day.

          1. That’s cool, but it will be a fucking mob scene. I’m not from el barrio. I’ll pay full price for my tacos. Besides, I’ve got my eye on a Cubano sandwich from the deli down the street.

            1. Go on…

              Sour pork, ham, and swiss?

              1. Yep. Mayo, mustard, pickle, on ciabatta. With a refreshing fruit salad of apple, grapes, strawberries, and fresh mint drizzled with a little honey. Left over from last night. Goddamn it was fucking hot last night.

        2. Maybe the absurdity of arresting women for doing things while pregnant might might make us think more deeply about considering a fetus as having a right to control what she does with her body.

          It’s like if I was hooked up to you via a blood transfusion machine against your will and then I kept demanding that you do, or not do, certain things, because the quality of your blood was so important to me.

          If anything, the idea that women’s freedom should be restricted to protect their fetuses should make anti-abortion people think twice about what they are really arguing.

  5. “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.”

    Ummm, no. Physical addiction means you suffer symptoms of withdrawal. A baby can suffer from withdrawal without having to be engaging in compulsive behavior.

    I would argue that the clinical definition creep of addiction to include compulsions that are psychological in nature has at once minimized the seriousness of physical addiction, and unnecessarily medicalized behavioral issues.

    1. ^^THIS^^

      It is utterly idiotic to define addiction to mean any self destructive behavior. Addiction has or at least had a an actual medical meaning.

      1. Russ Roberts had a great Econ Talk that touched on this topic. In a nutshell, it’s not idiotic, when the addiction recovery industry is mega bucks.

        Greenberg on Depression, Addiction, and the Brain

        1. It is not “idiotic” for them to say it. It is self interest. But it is still a completely idiotic misuse of the term.

          The addiction industry is one giant fraud.

  6. Yeah, a candidate should totally get on board with that. Just think of the 6 women who would vote for you, assuming they don’t OD before the polls open.

  7. Look, it’s ok to murder that piece of invasive tissue before it’s born, but don’t give it any drugs, mmkay?

    And if any mums give the thing drugs, then put that mom in prison and make her register as a drug offender for life, for the children.

    /the proggies

  8. I hear threatening troubled women with jail for a dirty piss is great for luring them for pre-natal treatment.

    1. For sure. And if they have an abortion, could they even be charged with this? Suppose a woman comes up hot and then gets an abortion before the cops charge her. What could they charge her with?

      1. Destruction of evidence, obstruction of justice, witness tampering, victim intimidation, terrorist acts. Just to name a few.

        1. For exercising her right to an abortion? That case ought to be fun.

          1. Yep! 😛

            1. Wow.

              The duration of that case and the six months following the verdict would be an excellent time to go live in a cave as a hermit with no internet access, or TV, or newspapers, or the like.

  9. In an attempt to derail the abortion train, here’s some NPR hack telling you that you’re just dumb and the Ex-Im bank is really that important.

    The bank’s official mission reads jobs, jobs jobs. Job support gets top billing in a press release announcing new deals with overseas buyers. Since 2009, the Bank touts that they’ve supported 1.2 million private sector jobs, and 205,000 in 2013. Even Paul Krugman, not the most enthusiastic supporter of the Bank, has argued that “this is exactly the moment when ending an export-support program really would cost jobs.”

    WE ARE THE KNIGHTS WHO SAY JOBS! BRING ME A RECOVERY!

    1. So, funneling taxpayer money to the Biggest Corporations is OK when They Say So.

      Taking Jobs from small business and giving to big ones!? CREATIONS IN THE MAKING

      1. *deer-in-headlights look

        /NPR listener

      2. It’s fine for big corporations to make big bucks. It just needs to be consecrated by the state before the dollars flow through to them.

    2. Checkmate LOLbertarians! Even Paul Krugman disagrees with you!

  10. Once a woman is pregnant, her sole purpose in life is to serve as a human incubator for the fetus. The fetus has exclusive property rights to her uterus and anything she does to interfere with that violates the fetuses rights.
    Also not taking prenatal supplments is neglect.

  11. Hey, remember the ‘black actress’ who was totally oppressed and stuff and was like a big deal we were supposed to get all “GRRR!! Police-State!?” over?

    OMG I don’t even.

    1. That fucking bitch. Women really are unfairly harassed by ignorant cops who think they might be hookers. She gets caught banging her boyfriend in broad daylight and proceeds to make it harder for actual victims to complain.

    2. Don’t ruin the narrative, asshole!

    3. This seems like it could be an important little detail.

      1. Brian’s Update to his original post attempts to claim that the REAL ‘take-away’ from the audio is how ‘officious’ and with ‘with maddening supercilious arrogance’ the Officer attempted to…

        … tell Watts to please *shut the fuck up* and let him finish his report and go on his way…?

        Brain just lost like -10 H&R cool-points. Listening to the audio i find myself wanting to give the cop a medal for *restraint*. she went Full-Queen-Bitchtard just because he said he had to ‘respond to a complaint’. AND WAIT UNTIL IM OFF THE PHONE WITH DADDY!!

    4. I would want to see something from somewhere that wasn’t TMZ or TMZ sourced before I started getting m outrage on about this possibility. :-/

  12. I don’t know if this particular mother harmed her child. If not, then of course it’s wrong to arrest her.

    In principle, I would say that unnecessarily harming your child, even in the womb, should be prosecuted. Damaging the child with drugs qualifies as unnecessary harm.

    And this is true even if you’re a choicer. If a woman *chooses* to bring a child into the world damaged, that should be a crime, at least a crime against the born child.

    1. That doesn’t work. By that logic a woman with bad genes who has a child is doing the same thing as smoking drugs.

      To have a crime, you have to have a victim. To have a victim you have to have a person. And if a fetus is not a person, they can’t be the victim of a crime. There is just no way around that.

      To say they are is to say the fetus’s status as a person depends on the mother’s subjective intentions at the moment. And that just makes no sense.

      1. I was talking about deliberately damaging the child, not possessing the “wrong” genes, which is no crime. Or shouldn’t be.

        1. That seems like special pleading to me. Getting pregnant is a choice (RAPE! aside). What is the practical difference between getting pregnant with genes likely to cause birth defects, and getting pregnant while addicted to a substance likely to harm the child?

        2. How is having a child you know is going to be genetically defective or stands a good chance of being so any different than drinking? Think about it.

          1. This proves too much. How is having a genetically defective child (as determined by a Board of Eugenics, like in the good old days, I suppose) different, under your reasoning, from beating a *born* child until its bones break? I mean, it’s all child abuse, right?

    2. unnecessarily harming your child, even in the womb, should be prosecuted.

      That slope clocks in at about 89 degrees, under an inch of the very best silicone-based lubricant.

  13. Even a ‘desired’ pregnancy comes with a host of social peeves unless you are clean as the wind driven arctic snow and can make your body live in an accident-free bubble. Once that fetus is inside yo body mama society takes over it… your body that is.

    And even during breastfeeding don’t be caught sipping on a wine in public- you might get arrested.

    After the breast-feeding stage don’t even caught letting your little ones play about alone in the park because your milf ass might get thrown on some unpleasant CPS/LEO radar.

    When the playground stage ends it aint’ even over yet. Don’t let your teens sext or play doctor in the basement… if caught, they could end up at 14 in child prison and a sex offender.

    Finally, they made it to college and they are out the door and on their own… gets even worse. Now they have to learn how to avoid the police so they can remain relatively unharmed or undead and how to fuck by asking 20 questions to avoid rape charges.

    Go ‘Merika!

    1. Yep. Feelin’ pretty solid on that decision to never have children.

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