A Crime No Man Can Commit: Tennessee's Law Criminalizing Drug Use During Pregnancy Heaps Punishment on Reviled Women

Posted: Jul 16, 2014 12:01 AM

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 is in jail.

Loyola, who was arrested last week after giving birth to a baby girl who tested positive for amphetamine, is the first woman 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 its chief sponsor described as "the worst of the worst": women who not only use 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 to 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 criminal offense, her treatment can be understood only in light of the arbitrary distinctions drawn by the war on (some) 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 Loyola's favored drug 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 studies using doses much higher than people generally take have shown adverse effects on fetuses, 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?
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 be first out of the gate with an arrest under this 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 charge: There does not seem to be any evidence that Loyola's meth use harmed her baby. As Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), 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.