Tennessee Makes First Controversial Arrest Under New Pregnancy Criminalization Law

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In early July, 26-year-old Mallory Loyola brought a baby girl into the world. However two days after giving birth, this joyous event was cut short when the state of Tennessee charged the new mother with assault. This makes Loyola the first women to be arrested under Tennessee’s new law to criminally charge mothers for potentially putting their fetuses in danger by using drugs.

This legislation took affect about a week ago and stipulates that “a woman may be prosecuted 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.” This law, however, might not apply to Loyola’s case. There is no evidence that Loyola used a narcotic drug or caused her unborn child any harm.

Loyola tested positive for methamphetamine, also confessing that she smoked the drug several days before the birth. Narcotics refer to opiates such as heroin and prescription painkillers – meth is not considered to be a narcotic. Tennessee’s new law was passed to ease fears about babies being exposed to opiates in utero, which can lead to a condition called “Neonatal Abstinence Syndrome.”

National Advocates for Pregnant Women (NAPW) is one of the many groups that firmly opposes laws that criminalize drug use during pregnancy. NAPW executive director Lynn Paltrow said:

“This law was sold as if it were just about illegal narcotics. But sure enough, the first case has nothing to do with illegal narcotics — and nothing actually to do with harm to anybody. There’s no injury. There’s just a positive drug test.” [source]

Along with NAPW, every major medical organization – such as the American Medical Association, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the American Public Health Association – are opposing efforts to arrest pregnant women who use drugs.

huge campaign called “Healthcare Not Handcuffs”, led by a diverse group of Tennessee reproductive rights and criminal justice groups, was launched against the legislation. The campaign states that threatening women with criminal charges discourages them from seeking the medical care they need.

Rebecca Terrell, the chair of Healthy and Free Tennessee – one of the groups in “Healthcare Not Handcuffs”, said:

“These punitive measures are proven to be ineffective, and yet our state chooses to waste tax dollars locking up women instead of getting them the health care they need. We are already receiving reports of women seeking out non-licensed health providers to avoid having a medical record and risking arrest. This is extremely dangerous.” [source]

Women being arrested for positive drug tests either while pregnant or shortly after giving birth is not uncommon. However, there’s no scientific evidence that exposure to illegal drugs in the womb causes long-term health issues in young children. Studies have actually found that exposing fetuses to opiates, cocaine and meth is just about as harmful as a fetus being exposed to cigarettes.

Medical professionals would prefer that pregnant women remain drug-free, but agree with advocacy groups like NAPW that charging pregnant women with criminal negligence strips them of their fundamental rights once they are pregnant. Paltrow explains:

“This view of pregnant women essentially means that as soon as you’re carrying a fertilized egg, you’ve lost your medical privacy and your right to make medical decisions. But all matters concerning pregnancy are health care matters. Pregnancy, like other health issues, should be addressed through the public health system and not through the criminal punishment system or the civil child welfare system.” [source]

Additionally, the criminalization of pregnant women unfairly impacts low-income women of color, who are more likely to lose custody of their children. African American mothers have been involved in the vast majority of cases tracked by NAPW.

Currently, the American Civil Liberties Union of Tennessee (ACLU-TN) is seeking plaintiffs to challenge the state’s new law. In a statement, ACLU-TN notes:

“This dangerous law unconstitutionally singles out new mothers struggling with addiction for criminal assault charges.” [source]

ACLU-TN is encouraging those concerned about the impact the law will have on their families to get in touch.