Tennessee's 'Fetal Assault' Law Isn't Keeping Pregnant Women from Using Drugs

A little under two years ago, Tennessee passed Senate Bill 1391, making it a crime to have taken narcotic drugs while pregnant, if the infant is born addicted to narcotics or “harmed by” them. While 28 women have been charged under the law, and one sentenced to jail time, there’s no evidence it’s worked to reduce the number of babies born addicted to drugs.

The American Civil Liberties Union and other groups opposed to the fetal assault law are hoping they’ll be able to have it repealed this legislative session. When the law was passed in April 2014, the ACLU called it “deeply misguided,” arguing it would force drug-dependent women into hiding instead of encouraging them to seek treatment or even prenatal care. The state charged the first woman, Mallory Loyola, under the new law just two months later, when she gave birth to a baby girl and admitted to smoking meth while pregnant. Her charges were dropped in February of this year after she successfully completed a rehab program. Her attorney described Loyola as “extremely remorseful,” saying she didn’t even want to try to make bond, feeling that she deserved to be in jail.

The law does say enrolling in drug treatment can be an “affirmative defense” against the charges, if the pregnant woman is “actively enrolled in a long term addiction recovery program before the child was born, remained in the programs after delivery, and successfully completed the program.”

If the infant is born with neonatal abstinence syndrome (NAS), a woman can face charges of aggravated assault, with a maximum 15-year prison term. But though NAS can result in painful withdrawal syndromes and require medical treatment, it’s not clear what, if any, long-term health effects it can cause.

Nashville Public Radio reports today that some women who were criminally charged under the law say it’s “not so bad,” which probably isn’t their exact wording, and “the threat of jail-time was a wake-up call.” And yet, the story adds:

It isn’t clear the fetal assault law is doing what it was supposed to do.

In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state. Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year. And yet the mountainous region is still home to the largest number of babies being born needing to detox.

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The station also found that the number of babies born with NAS are flat compared to this time last year.

In other words, then, one DA in one part of the state is pushing the bulk of these prosecutions; he argued last year that the law “balances deterrence with accountability and treatment.” But as Al Jazeera pointed out last year, not all drug treatment facilities in the state even accept pregnant women, or have enough space to accept them.

Mallory Loyola’s Facebook profile indicates she’s now working at a sobriety organization. It also features lots of photos of her baby girl, who is beautiful.

Contact the author at anna.merlan@jezebel.com.

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Mallory Loyola’s mugshot. Image via Monroe County Sheriff’s Department