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.

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 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?

The 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.