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July 1, 2015
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

A Tennessee woman is the first to be jailed under a new state law that makes it a criminal offense to ingest certain drugs while pregnant (ABC, 6/13/15). Mallory Loyola, 26, was charged with a misdemeanor when both she and her new baby tested positive for methamphetamine. The law only went into effect earlier in June.

"Hopefully it will send a signal to other women who are pregnant and have a drug problem to seek help. That's what we want them to do," [Monroe County Sheriff, Bill Bivens] said.

Of course making drug use a criminal offense may have the opposite effect; it may encourage women to keep the behavior secret rather than seeking treatment. That’s certainly the conclusion many who oppose the new law have drawn.

Meanwhile, the ACLU is considering a lawsuit to enjoin enforcement of the law.

"This dangerous law unconstitutionally singles out new mothers struggling with addiction for criminal assault charges," Thomas Castelli, legal director of the ACLU Tennessee, said in a statement. "By focusing on punishing women rather than promoting healthy pregnancies, the state is only deterring women struggling with alcohol or drug dependency from seeking the pre-natal care they need."

All that may well be true, but it scarcely implicates the Constitution. The Tennessee Legislature may have erred, but bad policy doesn’t necessarily equal a violation of the highest law in the land.

The Obama Administration was similarly opposed to the law and off-base in its criticism.

Michael Botticelli, acting director of the White House Office of National Drug Control Policy at the time, said the federal government didn't want to "criminalize" addiction.

"What's important is that we create environments where we're really diminishing the stigma and the barriers, particularly for pregnant women, who often have a lot of shame and guilt about their substance abuse disorders," Botticelli said, according to The Nashville Tennessean. "We know that it's usually a much more effective treatment and less costly to our taxpayers if we make sure that we're treating folks."

Needless to say, the law doesn’t “criminalize addiction.” Addiction may not be entirely victimless behavior, but what the new law is aimed at is the welfare of unborn children. Children born addicted to certain drugs or with fetal alcohol syndrome can be severely damaged for life. The notion that there’s only one person involved — the mother — in such cases, is far from the truth.

Still, it’s hard to argue that making drug use during pregnancy a criminal offense will do much to solve the problem, and it may make it worse. Of course any mother who does so would likely be found unfit by a family court and see her child taken from her. But yes, addicts usually do a lot better with treatment than they do with prison.

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