Tennessee passes law to punish pregnant women using drugs

PhotoMonroe CountySheriff's Office

Starting July 1st of this year, women in Tennessee who use drugs during pregnancy can be charged with assault.  I have worked with children who were born with drugs in their system, and it is as if their mother’s have put a permanent roadblock to their success.  As a child advocate, this law makes sense to me.  As a woman, it terrifies me.

Every year, thousands of babies are born with drugs in their systems.  Long-term health implications include low birth weight, risk of developmental problems, mental retardation, and seizures, among others.  From a financial standpoint, the average hospital bill for a child born exposed to drugs is close to $60,000, and ongoing health issues will keep piling up.  Babies born exposed to drugs often enter the child welfare system, which has it’s own extensive host of problems and costs.

That said, criminalizing drug use during pregnancy is the wrong fix.  First of all, as critics of the law have pointed out, it makes women who are drug addicts less likely to come forward for treatment.  It also encourages pregnant women to terminate a pregnancy they might otherwise have carried to term or give birth outside of a hospital where a baby might not be tested. This explains why every major medical organization has denounced the criminalization of drug use by pregnant women.

Criminalizing what a woman does to her own body has dire consequences for a woman’s right to privacy and her right to control her own body.  It opens the door to other kinds of controls.  What about when a pregnant woman eats deli meat or soft cheese?  Bacteria in deli meats and soft cheeses can cause miscarriage, should the law control what a pregnant woman can eat?  What about a woman who takes a hot bath or drink a glass of wine? A hot bath can cause stress to the fetus and alcohol consumption can cause Fetal Alcohol Syndrome, should the law control otherwise legal behavior just for pregnant women?

Interestingly enough, the first woman arrested under the new law was charged under a reading that would require an expansion of the law.  The law provides “a woman may be prosecuted for an assaultive offense for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.”  The law specifically allows prosecution for assault for the illegal use of a narcotic.  The first woman arrested under the new law, Mallory Loyola, was arrested for using meth (an amphetamine, not a narcotic).   Nonetheless, she was charged with assault, an offense that carries a fine of up to $2,500 and up to one year in jail.  The fact that the very first woman charged under the law used a drug that isn’t even a narcotic indicates that  Tennessee law enforcement has a broad view of what kinds of drugs should count under the new law.  The nation is watching to see how the courts will respond.

Lauren Fisher

About Lauren Fisher

Lauren Fisher Flores is a recent graduate of the University of Houston Law Center. Lauren received her B.A. from Hamilton College and her Masters in Early Childhood Studies from the University of Texas at Brownsville. Before entering law school, she worked at the South Texas Pro Bono Asylum Representation Project (ProBAR) where she provided legal services and "Know Your Rights" to detained immigrant children on the Texas-Mexico border. During law school, she clerked with the Family Law Department of the Mexican Foreign Ministry in Mexico City and the Juvenile Public Defender in Maricopa County.

2 thoughts on “Tennessee passes law to punish pregnant women using drugs

  1. James Dwyer
    February 24, 2015 at 3:23 PM

    Lauren, Please don’t call yourself an advocate for children and then start urging readers to be more concerned about adults’ rights. Do you see advocates for abused women expressing concern about the rights of their abusers? No, because when you are an advocate you have a duty of undivided loyalty to your client. Children are routinely disserved by people who claim to be their advocates and then recommend all sorts of compromises with the rights of adults. If you can’t put your perspective “as a woman” out of mind, then you cannot be a true advocate for children. None of this is to say the Tennessee law is good for children, but no one should trust your view on that when your loyalties are clearly divided.

    1. Ellen Marrus
      March 6, 2015 at 12:11 AM

      Jim,
      I have to disagree with you on several levels. Knowing Lauren as I do, I do believe she can call herself an advocate for children. She stands up for children on a daily basis with her actions, and not just her words. Being an advocate for any one group does not mean that you owe undivided loyalty to that group. You can advocate for more than one group of people. I do agree that a lawyer owes his or her client undivided loyalty. But an advocate is a little different. We all look at events around us through our experiences and who we are effects the way we look at things. A lawyer representing a client has to be careful about any implicit bias that they have towards or against any group. An important step in recognizing any bias is acknowledging and Lauren starts her post that way. She may feel that the law makes sense as a child advocate (which I do not necessarily agree with), but as a woman, she clearly states it concerns her.

      Could Lauren have taken a different approach? Yes. She did not need to acknowledge her view of the law as a woman. That would have been probably more deceiving. She could have concentrated more on the negative aspects of this law for children. For example, if a woman is put in jail or prison during her pregnancy, her child is much more likely to be born in prison and immediately removed from his or her mother. This will interrupt any bonding the child might have with his or her biological mother and could cause damage to the infant’s ability to bond with adults in the future. The infant is even more likely to end up in the child welfare system and statistics show the downhill effect that often has on children’s lives. Children in the child welfare system are more likely to be developmentally delayed, fall behind in school, and end up in the juvenile and/or criminal justice systems. It would be much helpful to the debate on this law if you commented on the benefit or consequences for children under the new law rather than attacking Lauren on whether she is or is not a child advocate.

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