Last week, the first woman was arrested in Tennessee under a controversial new law, passed in late April. The law allows for the arrest of pregnant women who’ve been found to use narcotics during pregnancy and “if her child is born addicted to or harmed by the narcotic drug.”
It’s a first of its kind law, but this type of prosecution of pregnant women goes back decades. The first incidences can be traced to the beginnings of the war on drugs in the 1980s and ’90s, when the attention was primarily on the over-hyped and misinformed “crack baby” epidemic. In that era, mostly black women were being targeted for using crack cocaine during pregnancy. Back then, they were often charged under existing laws that hadn’t been written with pregnant women in mind—such as child abuse laws, or laws prohibiting the sale of drugs to a minor. Tennessee has taken things a step further with a law crafted specifically to criminalize pregnant women with drug problems.
There was little evidence during the intial crack baby hysteria that in-utero exposure to the drug actually had long-term negative consequences. But a longitudinal study published last year proved outright that children exposed to crack cocaine during pregnancy did no worse in life than their peers from similar neighborhoods. The study showed that, in reality, the thing to blame for the often poor outcomes of these children was not drugs, but rather poverty. Scholar Dorothy Roberts, in an appearance on “All In with Chris Hayes” this week, recounts this history.
Despite all of this, the trend of prosecuting drug-using mothers has not abated. Instead, the targeted drug has changed over the decades as trends in media and drug use have evolved. The latest target of this hysteria is the use of opiods, commonly consumed in the form of prescription drugs like percocet, vicodin or oxycontin, or also as the illict drug heroine. The Tennessee law specifically refers to narcotics. While “narcotic” has vague connotations to all illict drugs, it’s most often associated with opiods. This new law is consistent with recent media alarmism regarding the use of prescription drugs and other opiates by pregnant women, and represents simply a new chapter in the recurring hysteria about pregnant women and drug abuse.
The main problem with these kinds of stories, and prosecutions, is they do nothing to address the very real substance abuse and addiction issues facing many people in the United States today. Despite decades of incredible spending and increased incarceration in response to the war on drugs, addiction and substance abuse continue. Some policy makers have acknowledged this reality and begun looking for a different ways to address substance abuse. “We’ve really tried to reframe drug policy not as a crime but as a public health-related issue, and that our response on the national level is that we not criminalize addiction,” said Michael Botticelli, acting director of the White House Office of National Drug Control Policy. “We want to make sure our response and our national strategy is based on the fact that addiction is a disease.”
There is no evidence that incarcerating women who use drugs during pregnancy will do anything to improve their health, or their children’s health. In fact, these criminalizations actually worsen the health of the newborn, and make access to appropriate drug treatment for the mom unlikely. Mallory Loyola, the woman charged under the Tennessee law, was in jail for at least three days before being released on bond, just two days after giving birth, during which her child was in custody of Child Protective Services. Kylee Sunderlin of the National Advocates for Pregnant Women (NAPW), an organization that works closely with women charged under these types of laws, explained that when a baby is diagnosed with what’s called Neonatal Abstinence Syndrome—or, the constellation of symptoms that reflects substance exposure inutero—established treatments for it include skin to skin contact with the mother and breastfeeding. That treatment is next to impossible if the mother is incarcerated and her child is in state custody.
While Loyola is white, history tells us that it’s black women who will be disproportionately targeted by this and similar measures. A study by NAPW of the arrests and prosecutions of pregnant women from 1973 to 2005 found that African-American women were “significantly more likely to be arrested, reported to state authorities by hospital staff, and subjected to felony charges.” Part of what influences this bias is the fact that there is no consistent policy regarding drug testing of pregnant women, which means it is left up to the discretion of hospital personnel. Often, a trigger for testing is a complication with the birth, such as a low infant birth weight or premature delivery. These are things for which women of color, particularly black women, are already at higher risk. As a result, black women in particular face higher levels of scrutiny than white women—leading to more prosecutions under these types of laws.
So if it’s clear that drug prosecutions don’t actually improve the health of mother or baby, why are they still so intensely pursued, despite the opposition of the entire medical community? One possible cause lies in the connections between the for-profit prison system and lawmakers. Deborah Small, author of “Breaking the Chains: Communities of Color and the War on Drugs,” pointed out in an Alternet article in May that Tennessee is home to the headquarters of the Correctional Corporation of America. “One can’t help but wonder,” she wrote, “whether there is any connection between Tennessee becoming the first state to enact legislation that would make women subject to criminal punishment because they became pregnant and failed to meet societal expectations and its distinction as the corporate headquarters of the nation’s largest private prison company—Correctional Corporation of America (CCA)—which already operates 3 of the state’s 14 prisons.”
The ties to CCA aren’t just geographic. The company is also a major contributor to the campaigns of Gov. Bill Haslam, who had the power to veto this bill, and two other Tennessee lawmakers. Small reports: “Governor Bill Haslam was among the top four recipients of campaign contributions from CCA—remarkably, two of the other four top recipients are also Tennessee elected officials—Senators Lamar Alexander and Bob Corker.”
It’s clear that the war on drugs—and the subsequent war on pregnant women of color who have used drugs—is motivated by ideology and profit, not actually care for the wellbeing of mothers and their children.