A woman in Tennessee was arrested on Tuesday under a new law that criminalizes mothers whose babies are exposed to certain illegal drugs in utero. The law went into effect only a week prior to the arrest, which was made after her newborn tested positive for amphetamine.
Though the law specifically criminalizes “the illegal use of a narcotic drug while pregnant, if [a woman’s] child is born addicted to or harmed by the narcotic drug,” local reporting suggests that the woman, Mallory Loyola, was arrested for exposing her child to amphetamine, which is not a narcotic. Initial reports also make no mention of the presence of symptoms of withdrawal nor that the child was harmed by the exposure.
Loyola, who is the first person to be prosecuted under the law, was charged with assault, according to local TV station WBIR, a misdemeanor offense that carries a penalty of up to one year in jail and a fine of $2,500.
Politicians in the state emphasize that the so-called Pregnancy Criminalization Law is intended to protect children. “The focus of this legislation is to protect babies being born addicted to drugs,” said Shelby County Attorney General Amy Weirich in a statement. “We are not talking about going after women who show up at their OB/GYN with a positive drug screen.”
But Farah Diaz-Tello, a staff attorney at National Advocates for Pregnant Women, notes that the use of the word “addiction” to describe infants exposed to drugs in utero is a vestige from the “crack baby” myth, and is incorrect and misleading. “Babies cannot be born addicted to any substance,” Diaz-Tello told RH Reality Check. “Addiction means a specific thing, it is a behavioral condition, and is distinct from dependency and simply experiencing withdrawal. You can’t say that they are addicted because they are not showing drug-seeking behavior.”
Diaz-Tello also says that laws like the one in Tennessee are actually a threat to public health, because they deter women who struggle with drug addiction from entering rehabilitation programs for fear of being held criminally liable. “If pregnant women are afraid they’ll be prosecuted if they’re honest with their doctors and seek medical help, they won’t seek the help,” she said.
Children like the one born to Loyola will be referred to the state’s child services and could potentially be removed from their parents.
In addition, the law mistakenly focuses only on the illegal use of drugs during pregnancy. Yet, according to the Centers for Disease Control and Prevention, prescription painkillers alone were the cause of “14,800 overdose deaths in 2008, more than cocaine and heroin combined.” Almost 20 percent of those painkillers were obtained legally, through a doctor’s prescription.
Tennessee is the first state to pass such a law through its legislative process. South Carolina and Alabama also permit women to be prosecuted for pregnancy outcomes, though the practice was legalized through the court system, not by the legislature.