How having a baby can land a woman in jail

Medical professionals contend that drug addiction is a disease. So why do we throw women in jail for being addicted to drugs while pregnant?

Terry*, a nervous, soft-spoken blonde, is crying when she says being pregnant felt like a dream. That's because when she walked into the hospital she was pregnant and when she walked out she wasn't pregnant anymore, but she didn’t have her baby, either.

Two days before the birth of her daughter, Terry had popped some roxicodone. She had tried hard to be good and kicked her habit for a while, but she was stressed about the baby and took the pills. That relapse, the latest of many over the years, had not made for a fun party.

"I wanted to be clean so bad that I remember, literally, doing the drugs with tears streaming my cheeks," she says. She prayed to God to put a bubble around her daughter to protect her, and in a way it worked; days later she was born perfectly healthy. But traces of the drug were found in the baby’s system. The state took her away and put her into foster care, while Terry ended up in jail, she says, after pleading guilty to reckless endangerment with a deadly weapon.

“My body was what they considered to be the deadly weapon against my baby,” says Terry, who is currently staying at Mending Hearts, a treatment center for addicted women in danger of homelessness in Nashville, Tennessee.

“If someone goes and pulls my record out it looks like I tried to harm someone,” she says. "It looks like I am a bad person.”

***

Pregnant drug addicts are not the most sympathetic figures. A pregnant woman who uses drugs is like an anti-drug PSA: Nothing could stop her from getting high, not even her own child! If you’re a politician or prosecutor looking to demonstrate how much you care about babies, cracking down on women who do drugs while they're pregnant is not likely to outrage your constituents.

"Prosecutors have everything to gain by going after these women and nothing to lose," Linda C. Fentiman, a Pace Law school professor, tells AlterNet. "Data is pretty clear that long-term drug use is not nearly as significant a risk as being born poor, but it doesn't matter. [Prosecutions] resonate with the electorate, resonate with the jury."

The demonization of female drug users has a long history. From 1920s "opium vampires" to '50s dope-crazed teens, the specter of the female drug addict has portended national decline more than once in the media and the political discourse surrounding drugs. But full-fledged hysteria about drug-addicted mothers really got underway in the 1980s, when the media discovered "crack babies" and began to pump out sensational stories of ghettos filled with tiny, twitching newborns doomed to lives of addiction and illness, thanks to their (always black or brown) mothers.

It took decades -- decades of escalating punitive measures aimed at poor, minority women -- for mainstream media to acknowledge that the so-called crack baby epidemic never happened. In 2009, the New York Times reported that although subtle differences were found in kids exposed to cocaine in the womb, most negative life outcomes could be chalked up to the effects of poverty, like bad schools, poor nutrition, and higher rates of exposure to lead in poor neighborhoods. Studies have shown that crack is less harmful to fetuses than alcohol and about as bad as cigarettes.

Inspired by crack baby hysteria, district attorneys stepped up prosecutions of pregnant women in the 1980s using a variety of statutes not intended for that purpose, like laws against child abuse, reckless endangerment and delivery of drugs to a minor. The high courts mostly shot down these prosecutorial tactics, but the reality of the US justice system all but ensures that if you’re poor, especially a poor woman of color (which, you probably are, if you landed in police custody for drugs)  you’ll be cowed into accepting a guilty plea, as Terry was. Prosecutors have not shied away from bringing murder charges against mothers in cases when the baby is born dead, even when the cause of death cannot be traced to drug use.

The crackdown on pregnant drug users has also been driven by the so-called Christian personhood movement, a decades-long crusade to undermine Roe v. Wade by legally imbuing fetuses with the rights of people at the expense of the mother, critics say. Personhood laws attach stiffer penalties to crimes that end up harming the fetus when a pregnant woman is hurt, but they’ve been turned on women themselves, who have faced jail time for, among other things, falling down flights of stairs, delaying a Cesarean section and attempting suicide, according to Lynn Paltrow writing in the New York Times. 

But women who use illegal substances remain a favorite target. Kristen Gwynne recently reported on a Tennessee woman whose drug sentence was extended by six years because she'd been pregnant when she went to a meth lab. Last April, the Alabama Supreme Court upheld the prosecution of women for doing drugs while pregnant under a "chemical endangerment" statute meant to protect kids from exposure to chemicals in meth labs; concurring opinions by two Alabama justices, liberally studded with references to God’s law, deemed protection of the “unborn” a responsibility of the state. 

In April, Tennessee passed the first law in the country defining drug use during pregnancy a crime in its own right. Women whose babies test positive for narcotics can be charged with assault and face up to 15 years in prison. Advocates for the measure argued it was needed to address the rise of neonatal abstinence syndrome in Tennessee, painting a grim picture of newborns shaking and suffering in their incubators. The bill's sponsor, Rep. Terri Lynn Weaver, quoted in Slate, warned of babies whose "whole mechanics are twisted, and they’ll never be the same.” But many medical professionals countered that NAS, associated with opiate use during pregnancy, is treatable if the baby gets proper medical care. Not a few critics have pointed to echoes of the crack baby epidemic in the discourse over NAS, from disturbing imagery of ailing newborns to the lack of evidence that NAS has any long-term effects to the moralistic condemnation of women who use drugs.

“These are ladies who are strung out on heroin and cocaine and their only next decision is how to get their next fix," Weaver said during debates over the measure, according to the Tennessean. (Weaver is no longer talking to media about the law, according to an office representative.) The new law would coerce "the worst of the worst” into treatment, Weaver said, while lobbying for the measure.

"It's always somebody else's fault,” she fumed to Nashville Public Radio. "What's wrong with, you screwed up, you're wrong, you've got to pay the consequences. What's wrong with that?”

Actually, there is a lot wrong with using punitive measures to address addiction, according to medical professionals, many of whom lobbied Republican Gov. Bill Haslam to veto the bill. For years, almost all major medical groups have opposed the criminalization of drug-using pregnant women, arguing that such measures hurt both mothers and babies. As far back as 1990, the American Medical Association issued a statement opposing laws that target pregnant drug users out of concern women would avoid prenatal care—with far worse consequences for the health of the baby. If mother and baby remain together after birth, the baby gets healthier faster, research has shown.

Substance abuse specialists also endlessly reiterate that addiction is a disease, one that’s vastly complicated by trauma and mental illness, not a moral failing that can be corrected through shaming and punishment. But the criminalization of women continues, propelled by the personhood movement, perennial drug panics, and the seemingly unshakable belief that addicts need to face harsher penalties to change their behavior. This mindframe, encapsulated by the "velvet hammer" metaphor wielded by Weaver and other proponents of the measure, misses the reality and complexity of addiction, especially as experienced by poor women, critics say.

***

“If I had to go to jail, in the mental state I was in, I would have committed suicide,” says Kris*, a young black woman who has tried and failed repeatedly to quit smoking crack. “I know it’s intended to provide mental and physical shock, but at the same time, you don’t know what that shock is going to do to somebody. I was already mentally and emotionally isolated. To be physically isolated, that’s the straw that’s gonna break the camel’s back."

Kris is looking forward to the birth of her son at the Lloyd C. Elam Mental Health Center, a complex of red brick buildings in the Meharry Medical College, located in a poor, mostly black part of Nashville. In the waiting room of the building, faded inspirational posters shout encouragement like "Girl Power!" and “Dreams become a reality!” The first is illustrated by upbeat 1980s white girls playing tennis and soccer; the other improbably depicts speeding race cars and jet planes. More to the point, a doctor on TV describes all the bad things that can happen to kidneys battered by drugs.

The women who end up here are very poor; some are homeless. A few have trouble reading, because they dropped out of school so young, according to Valeria Frierson, a counselor at the center. Some have worked as prostitutes, and many don’t have families, or families that still speak to them. Kris remembers her sister giving her a blunt threat: “You’re going to go to jail, and we’re going to take your baby and you’ll never see him again."

What many of the women have in abundance is trauma. "Sexual assault. Lots of rape. Molestation as children. A lot of abandonment," says program manager Sara Evans.

Her observation would not come as a surprise to addiction researchers: one study found that 84% of women trying to find substance abuse treatment had PTSD or had been victims of violent assault. Seventy-five percent of women in treatment for drug and alcohol abuse reported being sexually abused as children. Ninety percent of alcoholic women say they were sexually or physically abused. Adults abused as children are more than twice as likely to have problems with drugs or alcohol.

Many of the women who come in are also diagnosed with mental health problems. “A lot of bipolar disorder, anxiety, schizophrenia, depression,” Evans lists. “There’s PTSD — a lot of that.” Predictably, many women end up in situations as adults that exacerbate their trauma. “A lot of them will share with you stories about prostitution, picking bad relationships, being beaten by the men," Evans says. Often the counselors have to start from scratch explaining healthy relationship behavior; one of the first lessons is that getting hit or hitting are not OK.

"Drug use is self-medication to deal with trauma,” Evans continues. “To deal with the thoughts, to deal with the pain. You take medicine to numb yourself and forget the thoughts, but it’s temporary.”

Given the state of America's mental healthcare system, it's not surprising that people suffering from painful mental and emotional problems resort to self-medication. While the stresses of poverty and racism predispose poor people and minorities to higher rates of depression and anxiety, they have far less access to treatment: one study found that a whopping 87 percent of uninsured kids who need mental healthcare do not get it. Another study discovered that only 13 percent of low-income adults suffering from PTSD got help. Drug abstinence—an approach still officially favored over harm reduction—worsens the symptoms of PTSD, drastically heightening the chances of relapse.

Terry, who was diagnosed with depression and PTSD she attributes to childhood abuse, says doing drugs had stopped being fun—her tolerance was too high—but she needed them just to feel normal. "I’m miserable the entire time. I hate myself," she says. "I can’t face my family or anybody else because I’m so ashamed."

Her story is familiar to Evans. “They don’t want to be like this. They don't want to party,” she says. "Addiction is a disease. It's real. And mental illness and addiction is almost synonymous.”

Kris agrees. “It’s not like I keep smoking crack because it’s fun," she says. "It becomes a necessity, physical, mental and emotional beyond your desires of having a healthy life.”

"You don't have a home, your family won't talk to you, nobody trusts you,” Terry says. “You have no respect, nowhere to turn to next, you don't believe in yourself even if you do get help. So it looks pretty hopeless at that point.”

***

Over the years, Terry's stints in jail were not exactly productive in helping her cope with her depression, feelings of worthlessness and shame. When she found out she was pregnant again, after she had lost her daughter, she turned herself in on an outstanding warrant in the hope she'd be sent to a treatment program. When asked if she was detoxing, she lied and said no.

"I was scared to tell the people at the jail," she admits. "I wasn't going to tell them I'm pregnant and I'm using drugs, because I already had that charge from the past and I knew that in some of the officers' minds, no matter what great thing I did, they already had prejudged me."

She had once overheard a female guard grousing about how unfair it was that junkies and crackheads were running around having babies they didn't deserve, so she wasn't expecting a sympathetic audience.

Janie*, another participant in the Rainbow program at the Meharry Center, spent five weeks of her pregnancy in jail. The worst part about that stay was the lack of treatment for her meth addiction, she says, “only one meeting per month, tops." The jail offered plenty of church services, which she found decidedly less helpful. She had to deal with the hopeless feeling that she would not get better, that her baby would be taken away from her and that this would make her lose her mind.

“I thought I was just gonna hand her over to my momma in the hospital, chained to the bed,” she says. “I probably would have had an emotional breakdown. A nervous breakdown, no doubt."

She lucked out and ended up in the Rainbow program thanks to a sympathetic case manager. "He said it was the perfect place for me, and he was right," she says, bouncing her newborn daughter on her knee. Both she and Kris have loved learning about addiction, brain chemistry and useful new coping skills to rely on in times of sadness, stress or anger. They love getting parenting tips from the counselors and from each other for the kids they'll hopefully get to raise.

But activists question a system that seems set up to push people through jail before they can enter treatment, a logic the new law seems to double down on.

"My fundamental problem," says Mary Linden, executive director of the Tennessee Association of Alcohol, Drug and other Addiction Services (TAADAS), "is the fact we have to prosecute people first to get them in a program. They should have access to treatment before that."

In many parts of the state, especially rural areas, there just aren't any programs, advocates say. According to TAADAS estimates, only 14 percent of pregnant women who need treatment have access to state-funded outpatient programs. Given the number of live births in Tennessee and rates of illegal drug use among pregnant women — about 5.9 percent, according to current data—Linden has worked out that approximately 4,732 women would need treatment each year, but Tennessee has only 347 licensed detox beds. Linden, who mans a substance abuse hotline, says she frequently gets calls from people who want treatment but can't get it.

"Almost everyone who calls needs access," she says. "I've got someone who's called five to eight different centers. They're all full and have a waiting list. They're not going to get treatment for weeks."

Although pregnant women get priority access to treatment, that doesn't begin to dismantle the endless barriers that stand in the way of poor, pregnant women getting help, advocates say. Many rehabs don't treat pregnant women because of potential liability and many are pricey and don't accept TennCare, the state’s Medicaid program, so poor women's options are extremely limited. Their options are further constrained by the shortage of programs that allow them to bring their kids.

Women in rural places have it especially rough, with many parts of the state lacking treatment centers. As Lindsay Beyerstein reported in Al Jazeera America, methadone patients face next-to-impossible challenges in seeking out treatment. Beyerstein notes that methadone patients are required to visit a clinic six days a week, a difficult feat in some parts of the state where the nearest clinic is 50 miles away.

"When you look at these women, many are not just poor, but homeless, or victims of current intimate partner violence. They don't have the social support network necessary for anybody to stop using," Fentiman says.

***

Shelby County district attorney Amy Weirich does not buy into concerns over the new law. She says her office only charges women who have done drugs just days before giving birth and that her goal is to get the women into treatment, not to imprison them. "It gives us a velvet hammer to address the illegal use of the drugs and the woman’s addiction so that hopefully that’s the last baby she gives birth to that’s dependent," Weirich tells AlterNet. She emphasizes that if a woman completes the treatment program worked out with the judge, the assault charge will be expunged from her record.

But so far, application of the law has been anything but consistent throughout the state. A Gatlinburg woman who had not yet given birth was arrested because police suspected she was using drugs, even though the law explicitly states that a newborn must be harmed by drug use (prosecutors declined to pursue the case, but a simple Google reveals she was arrested for doing drugs while pregnant). Even though the law is worded to apply strictly to narcotic use, women have been arrested for meth, which is not  narcotic and has nothing to do with NAS.

It's too soon to tell if a large number of women are avoiding prenatal care as previous research indicates happens when high-profile prosecutions of pregnant women take place. But according to a Nation investigation, doctors and advocates say some women are going so far as to flee the state to give birth to avoid arrest. It's not hard to see why, given the very public prosecutions of the women who have been arrested so far.

Mallory Loyola's mugshot was splashed all over the Internet when she was crowned "first woman arrested" under the new law for allegedly doing meth while pregnant.

The second woman who was charged, 30-year-old Jamillah Falls, went into hiding for weeks after giving birth because she was scared of going to jail. ("Wanted: Simple Assault Charge" blared local TV news over a picture of her face.) When she turned herself in, she had to detox in jail and was so ill she missed court appearances, according to her lawyer William Gosnell.

Tonya Denise Martin, the third woman who was arrested under the new law, is dead. She hanged herself from a clothesline pole in her grandparents’ yard in November, according to the Nation. Her relatives say she suffered from depression and addiction, the article notes.

Brittany Nicole Hudson gave birth in a car, and didn't take her baby to the hospital because she was scared of being prosecuted under the new law, according to the Nation investigation.

So far, nine women have been charged.

“It’s public humiliation,” says Evans, who contends that if politicians who pass these kinds of laws came to the treatment center, they would see that the last thing her patients need is more shaming.

"To see them at first be very shamed ... it's in their body, in how they carry themselves," Frierson notes. "But then they start to open up because there are peers to help them. They go from, I'm just gonna sit here and be quiet and I'm going to be invisible, to really blossoming. They take on responsibility, we give them leadership positions...especially someone who's a little shy, we bring them out. And that has worked wonders."

Terry, who is expecting twins at a different faciity, is grateful her treatment program is helping her be healthy so that she can be a mom.

“It wasn’t that I didn’t love my children,” she says of her time battling addiction. “I know a lot of people don’t understand that, but I don’t have like this desire for a really great career or anything. I just want to be a good mother.”

* Terry, Kris and Janie are pseudonyms.