CHICAGO (WOMENSENEWS)  Tennessee prosecutors recently announced that they would temporarily delay pursuing assault charges against Mallory Loyola, the first woman arrested under a new Tennessee law designed to prosecute women for “assault . . . while pregnant” if a newborn tests positive for drugs.Under a deal, she will remain in custody until a bed opens up for her in a Knoxville treatment facility, with her hearing postponed until February, when prosecutors will decide whether to proceed after assessing her progress in rehab, Reuters reported.This is a step in the right direction, but it also underscores the problem. What we need are more drug treatment facility beds, not more beds in prisons. That’s not only humane, it saves money.In one particularly rigorous study, researchers found that if just 10 percent of eligible offenders were treated in community-based programs instead of going to prison, the criminal justice system would save $4.8 billion. Treating 40 percent would boost savings to an astonishing $12.9 billion.

Meanwhile, despite the promise of the Affordable Care Act, the nation faces an ongoing shortage of treatment providers and beds for substance abusers. Only about 11 percent of the more than 23 million Americans needing treatment for an alcohol or drug problem in 2012 actually received it, Kaiser Health News reported.

Arrested Upon Hospital Discharge

This summer, county officials arrested the 26-year-old Loyola as she was being discharged from the University of Tennessee Medical Center, after her baby girl tested positive for meth, which Loyola admitted to smoking days before giving birth. (Under the law, women can be charged with homicide if their baby dies.)

This sends the worst possible message to young women who struggle with addiction. The rate of illicit drug use was 20.9 percent among pregnant women aged 15 to 17; 8.2 percent among pregnant women aged 18 to 25; and 2.2 percent among pregnant women aged 26 to 44, according to the 2011 National Survey on Drug Use and Health. Overall, 5 percent of pregnant women aged 15 to 44 were current illicit drug users.

There is no question that Loyola has a drug problem, and–of course–there is no question that a pregnant woman’s drug use can harm her fetus, but laws like this one are dangerously misguided.
For starters, the fear of criminal charges is likely to prevent women from seeking prenatal care. Not surprisingly, physicians and health advocates tend to oppose to such laws.

There is also the matter of basic fairness. Unless there has been an immaculate conception, why is there not a male responsibility component for protection of the unborn child? In cases where the father is a drug abuser who may have encouraged the mother’s addiction, is he not at least as culpable?

Female Prisoners Skyrocketing

Finally, laws like this can only contribute to the skyrocketing number of poor, addicted and abused women–often mothers–populating the nation’s prisons. The number of children under age 18 with a mother in prison more than doubled between 1991 and 2007. All in all, the number of women in prison increased more than sevenfold between 1980 and 2010, growing from just over 15,000 to close to 113,000. The vast majority of incarcerated women have been victims of domestic or sexual abuse.

The Tennessee law is just one extreme manifestation of a larger–and subtler–trend, which threatens to separate countless mothers from their children.”

What makes the Tennessee law even more disturbing is the extent to which it reflects broader trends. As Susan Boyd, a professor of law and drug policy at the University of Victoria in Canada, says in a story by Amelia Thomson-DeVeaux in the American Prospect, “Like the ‘crack baby epidemic,’ the narrative puts mothers in opposition to their children, rather than seeing them both as vulnerable people, in need of care.”

Meanwhile, we still face the problem of babies born with neonatal abstinence syndrome and exhibiting signs of drug withdrawal.

At last count, at least 17 states treat drug exposure at delivery as a form of child abuse, as Thomson-DeVeaux recounts, and “whether other states will try to follow in Tennessee’s footsteps remains to be seen.” Regardless, drug addicted women already often must choose between getting the treatment they need and the risk of losing custody of their children or criminal prosecution.
This needs to change. Treatment–not incarceration–is the compassionate and cost-effective strategy for dealing with addiction.