Two weeks ago, Mallory Loyola became the first woman to be arrested as a result of Tennessee's new law criminalizing pregnant women. In April, Governor Bill Haslam signed a bill that allows a woman to be charged with criminal assault if she uses narcotics during her pregnancy. The law went into effect early July. One week after the bill was enacted, Mallory Loyola was arrested and charged with assault after she and her newborn tested positive for amphetamine. Amphetamine is not a narcotic.
Tennessee’s SB 1391is a problem for several reasons. In a letter delivered to Governor Haslam, the ACLU of Tennessee cautioned the governor from signing the bill, stating that it limits the "fundamental right to procreate." The letter also notes that the bill defies a "long-standing Supreme Court precedent" by making drug addiction a crime. Currently, Tennessee law prohibits criminally convicting a person simply because they have a drug addiction.
The ACLU, along with several other reproductive rights organizations and medical organizations, also noted that SB 1391 does nothing to protect the health of a newborn. In fact, several major medical organizations – including the American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists – have warned that criminalizing pregnant women will only discourage women from seeking prenatal care and drug treatment.
Other opponents of the new law expressed concern that a lack of access to health care and treatment facilities would lead to a disproportionate number of poor mothers and mothers of color being jailed. Sen. Mike Bell, one of seven Republicans to vote against the bill, was particularly concerned about the district he respresents: “I represent a rural district…[.]There’s no treatment facility for these women there, and it would be a substantial drive for a woman caught in one of these situations to go to an approved treatment facility. Looking at the map of the state, there are several areas where this is going to be a problem.” Mallory Loyola is currently still in county jail with a $2,000 bond. If convicted, she could be incarcerated for up to a year. The ACLU of Tennessee is currently seeking plaintiffs to challenge this law.
While Maine doesn’t have laws criminalizing pregnancy, Governor LePage recently used his “concerns” about what he refered to as “drug-addicted babies” to promote the “War on Drugs” bill he presented last legislative session. LD 1811, which would have cost the state approximately $2.7 million dollars to implement, would have funded 14 new drug enforcement positions, all designed to adjudicate, investigate, and prosecute drug cases. When justifying the need for this measure, LePage pointed to the 927 babies prenatally exposed to opiates in Maine last year. Yet Gov. LePage's bill, like Tennessee’s bill, would have done nothing to protect the lives and health of babies and their mothers – it would have only placed increased burdens on an already burdened criminal justice system.
The ACLU of Maine was the lone voice lobbying against the bill and, after midnight on the last day of the session, we were able to defeat it. If Governor LePage is really concerned about the life and health of drug dependent newborns, we encourage him to refer to this open letter we jointly signed in November of 2013, asking for policy rooted in science, not stigma.
