Patterico's Pontifications

7/19/2014

Questioning The New Tennessee Law Aimed At Protecting Unborn Babies

Filed under: General — Dana @ 2:27 pm

[guest post by Dana]

Beginning July 1 of this year, a strongly opposed bill signed earlier this year by Governor Haslam went into effect. The language of the bill states:

As enacted, provides that a woman may be prosecuted for assault for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug; law expires July 1, 2016.

According to Haslam:

The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs.

Tennessee has been attempting to find a way to deal with the increasing number of babies born addicted to drugs and suffering from a condition known as Neonatal Abstinence Syndrome There were 921 cases of NAS in the state last year.

Accordingly:

The legislation would allow mothers to avoid criminal charges if they get into one of the state’s few treatment programs. Haslam said he wants doctors to encourage women to get into treatment before delivering their babies so they can avoid charges.

Several weeks weeks ago, the first woman was arrested and charged with misdemeanor assault under the new law. She was subsequently released on $2,000 bail.

However, while Mallory Loyola admitted smoking meth a few days before delivery, and both mom and baby tested positive for the drug, methamphetamine is not considered a narcotic by the U.S. National Library of Medicine nor by the Drug Enforcement Agency/List of Controlled Substances.

Further,

The Food and Drug Administration puts methamphetamine (a.k.a. Desoxyn) and other amphetamines (e.g., Adderall) in Pregnancy Category C, meaning animal studies using doses much higher than people generally take have shown adverse effects on fetuses, but “there are no adequate and well-controlled studies in humans.” Doctors will prescribe drugs in Category C, which include antidepressants such as Prozac and Zoloft, for pregnant women if they believe the benefits outweigh the risks.

This unique situation, of course, begs a few questions: Is it reasonable to believe that by criminalizing drug use when pregnant, a woman would be deterred from using, given that the laws already on the book are not deterring her? Also, given that the language of the bill refers specifically to “narcotics” and meth is not a narcotic, was Loyola’s arrest justified? And, based on the documented dangers and impact of alcohol use during pregnancy, why does its use not face the same legal scrutiny? Finally, does this put a hypocritical restraint on a woman’s right to choose: If a Tennessee woman has the legal right to terminate a pregnancy, why should using drugs while pregnant be criminalized? Aren’t both actions not in the best interest of the baby and its protection? And while one action obviously intends to kill the baby, the other action has a potential to *only* damage the baby, not necessarily end its life.

With that, meet Deborah Jiang-Stein who opposes the bill. Jiang-Stein was born addicted to heroin:

I’m told the first months of my life were torture. I screamed constantly, spat out milk, and vomited all the time. I was going through withdrawal.

She goes on to describe her mother as having used drugs as a teen, and in fact, gave birth to Jiang-Stein in prison. Jiang-Stein remained with her mother in prison until she was adopted a year later. She notes that while some see her story as a success – “government gone right” – she views it differently:

My biological mother, my foster parents, and my adoptive parents didn’t get the support they needed to tend to my medical and mental health needs. Though I survived developmental delays, I slipped into multiple drug addictions in my teens as my way to cope with the losses, trauma, and sorrow. Drugs were all I knew to self-medicate.

I’ve been clean 20 years. But I now know that addiction is a physical and mental health disease, and not a criminal justice problem.

Jiang-Stein believes that the Tennessee law, rather than helping a drug using mother, instead sentences two generations at a time and continues a cycle of trauma. She cites the increasingly high numbers of mothers with children under 18 incarcerated for drug use, and sums up her opposition:

The new law in Tennessee simply feeds a pipeline of foster care, and does nothing to treat the core problem of addiction. Further, it traumatizes mothers and their newborns, who need stability, not prison time. This law will keep pregnant women who are using drugs away from prenatal care. A better policy would provide drug treatment, medical and mental health services, and job skills training.

In essence, Jiang-Stein and others who oppose the law, believe addiction isn’t a crime, but rather a public health and mental health issue, and that it should be treated through various forms of rehab, not through the criminalization of pregnant drug users.

*I use only as a convenient tool for comparison. It should go without saying that only does not in any way attempt to minimize the horrific damage that a mother’s drug use can do to her baby in the womb.

–Dana

61 Responses to “Questioning The New Tennessee Law Aimed At Protecting Unborn Babies”

  1. Hello?

    Dana (301ccb)

  2. I’m told the first months of my life were torture. I screamed constantly, spat out milk, and vomited all the time. I was going through withdrawal.

    sorry that happened to you but it seems to me a lil pikachu would be better off going into withdrawal after they’re born when people can take care of them and minister to their needs and symptoms than to go through withdrawal in the womb

    also i’d think focusing on and tackling the prescription oxycontin vicodin et cetera side of things would go a long way towards depressing overall incidence of this NAS thing

    but overall it seems to me this is one of those things where we’re well-served letting each state pursue their own remedies, as long as people are doing a good job measuring outcomes

    happyfeet (8ce051)

  3. From the hip, I’m assuming, as you suggest, that the law was intended to give legal leverage to get a person into drug treatment/off of drugs, rather than simply being punitive for the sake of being punitive.
    I don’t know if in actuality that helps or not, maybe prosecuting and criminal defense attorneys (present or past, nk) should chip in and let me read the comments and be edumacated.

    MD in Philly (f9371b)

  4. If woman plans on having an abortion she can smoke all the crack and shoot all the meth she wants, right?

    highpockets (bc1bd4)

  5. MD, from the post:

    [Gov.] Haslam said he wants doctors to encourage women to get into treatment before delivering their babies so they can avoid charges.

    Also, from Monroe County Sheriff, Bill Bivens:

    “Anytime someone is addicted and they can’t get off for their own child, their own flesh and blood, it’s sad,” he said.

    He hopes this arrest will be warning and maybe even a life-saver. “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,” he said.

    Dana (4dbf62)

  6. Well, meth is NOT a narcotic (it’s not even a analgesic), so the law is poorly written. Perhaps “illegally-obtained controlled substance” would be better, but then you could have mothers who had taken large quantities of prescribed barbiturates (which are narcotics)…

    Kevin M (b357ee)

  7. Addiction is not a crime, it is a condition. But at some point people need to take responsibility for their intentions, at least. Got an addiction, cannot stop no matter how hard you try? The problem is simple: with respect to drugs, you are crazy and you probably want to seek help. The failure to seek help is culpable.

    I have a lot more sympathy for an addict who keeps checking herself into rehab, even if she keeps on relapsing, than I do for someone who continues to use and never seeks help.

    Kevin M (b357ee)

  8. And “rehab” can mean a lot of things. NA and CA are utterly free and open to anyone willing to say they are addicted. Lots of people get clean (and stay clean) without ever seeing the inside of an actual rehab.

    http://ca.org
    http://na.org
    http://aa.org

    Kevin M (b357ee)

  9. Some time later God tested Abraham. He said to him, “Abraham!”
    “Here I am,” he replied.
    2 Then God said, “Take your son, your only son, whom you love—Isaac—and go to the region of Moriah. Sacrifice him there as a burnt offering on a mountain I will show you.”

    Abraham’s God relented and spared Isaac. But the little gods people sacrifice their children too, before and after they’re born, some before they’re conceived, don’t always. I don’t feel sorry for this lady. Pregnant or no, illegal use of drugs is illegal and anti-social. I see a constitutional bar to jailing somebody for being an addict, but not for using illegal drugs. We arrest people simply for possessing them even if there is no proof that they use them. Likewise, I see no bar to involuntary commitment and detoxification of addicts. In Tennessee, which is a dry state by default, it can include alcohol addiction.

    nk (dbc370)

  10. 7. I have a lot more sympathy for an addict who keeps checking herself into rehab, even if she keeps on relapsing, than I do for someone who continues to use and never seeks help.
    Kevin M (b357ee) — 7/19/2014 @ 5:53 pm

    What about the addict who stops checking herself into rehab, having concluded that the net few times on’t be e more successful than the first few times.

    Steve57 (e07d88)

  11. PS. I think illegality is the key. The activity must be illegal for pregnant and non-pregnant, male and female, young and old. I don’t think it would be constitutional to bar only pregnant women from skydiving, riding motorcycles, or snake handling.

    nk (dbc370)

  12. prescribed barbiturates (which are narcotics)…
    Kevin M (b357ee) — 7/19/2014 @ 5:49 pm

    In all of my medical experience, narcotics refers to medications otherwise called opiods, opium, morphine, heroin, codeine, methadone, etc.
    But when I go to Wikipedia, not the definitve word on anything, I find:
    The term narcotic (/nɑrˈkɒtɨk/, from ancient Greek ναρκῶ narkō, “to make numb”) originally referred medically to any psychoactive compound with any sleep-inducing properties. In the United States it has since become associated with opioids, commonly morphine and heroin and their derivatives, such as hydrocodone. The term is, today, imprecisely defined and typically has negative connotations.[1][2] When used in a legal context in the U.S., a narcotic drug is simply one that is totally prohibited, or one that is used in violation of strict governmental regulation, such as heroin or morphine
    It then goes on to say, with footnote, that in some legal jargon “narcotic” means any drug whose unauthorized use is prohibited by law, including apmphetamines.
    Concerning alcohol, it is not as easy of a cut off as yes/no. Trying to prove a person was actually drinking enough to cause a “substantial risk” (what is that) of fetal alcohol syndrome would be just practically more difficult, I would think. (Is the state of Tennessee, home of jack Daniels, really a dry state??)
    Concerning the comparison to abortion, I would say that people know the abortion is legal and a woman can chose that if they want, but that doesn’t mean they can’t try to “do something” to leverage an addicted mom getting help. It’s a messy world.

    MD in Philly (f9371b)

  13. Some believe the law is more than a ploy to target minority and low-income women:

    It targets women who are using [drugs like] cocaine and meth and heroin, while women who are addicted to prescription drugs are not going to be affected by this law,” Glass said. “We see a huge disparity between how women are treated who are addicted to prescription drugs and how women are treated who are using illegal narcotics. We know that people who are addicted to prescription drugs are, in most cases, of a higher class. They have more resources, so we feel like this law is going to absolutely unfairly target poor women, women of color, and women who don’t have the resources to go to a pregnant treatment facility.

    Dana (4dbf62)

  14. nk, I’m reading that 26 out of Tennessee’s 95 counties are completely dry, while 9 out of the 95 counties are wet. Also, 60 out of Tennessee’s 95 counties are “limited”, which apparently means the sale of alcohol and alcoholic beverages in certain jurisdictions is permitted.

    In spite of this, is the state legally considered a “dry” state (if that is what you are referring to at #9?

    Dana (4dbf62)

  15. Dry by default. It’s no unless local counties and municipalities say yes. The county in which Jack Daniels is made is a dry county. Visitors to the distillery are not allowed to sample the product. (I did not need to look that up.)

    nk (dbc370)

  16. oxycontin abuse in tennessee is not an exclusively high class affair

    i mean c’mon

    hillbilly heroin

    happyfeet (8ce051)

  17. Tennessee encouraging late term abortions. Interesting as mr spock sez.

    vota (df134d)

  18. There is something about “I’m from the government and I love your baby more than you do” that raises the hair on the back of your neck and makes your lips curl back from your fangs, though, isn’t there?

    nk (dbc370)

  19. 15. Once, back in the eighties, I was driving a ’62 Caddie for the owner to Florida. Left Nashville for Chattanooga around 11PM. A rather scary ride until the long grade down toward the destination.

    Dozens of drunks driving 20, 30, 40 miles over the limit.

    gary gulrud (46ca75)

  20. Agreed, nk. I suspect cost of caring for such infants is as big a part of it as anything:

    Q. Is neonatal abstinence syndrome a problem in Tennessee?

    A. Yes. There has been 10-fold increase in NAS babies born in Tennessee from 2000 to 2010 according to the state hospital discharge database. Beyond the pain and suffering a newborn experiences, NAS also has an economic impact. According to TennCare,a baby with NAS cost 5.6 times more than a baby without NAS in 2010.

    TennCare infants with NAS are 18 times more likely to enter state custody than infants without NAS.

    Dana (4dbf62)

  21. The “Walking Tall” movies are over-romanticized crap; Andy Griffith with the drunk Otis is a good example of how extreme dry localities can be*. Any booze, moonshine or bonded bourbon, was contraband in Mayberry.

    *Although that would have been North Carolina’s only dry county, Cumberland which borders on Tennessee.

    nk (dbc370)

  22. addiction is not a crime, but passing that on to the next generation should be;

    http://therightscoop.com/sarah-palin-fires-back-at-eric-holder-i-dont-need-a-lecture-from-cabinet-member-held-in-contempt-of-congress/

    narciso (24b824)

  23. OT LAWYER QUESTION

    If it turns out that Chicago Jeebus was in fact not a US citizen, what would be that status of all those pardoned by TFG? I’m searching for a ray of hope for my dotage.

    Gazzer (026c8c)

  24. “There is something about “I’m from the government and I love your baby more than you do” that raises the hair on the back of your neck and makes your lips curl back from your fangs, though, isn’t there?”

    nk – I think the attitude of I care more about my high than my baby and its none of your business anyway cuz the gubmint gonna pay for everything is more chilling and socially destructive in the long run, but that’s just me.

    daleyrocks (bf33e9)

  25. However, critics of the law argue that it has the exact opposite effect: by criminalizing drug use during pregnancy, Tennessee is actually preventing pregnant women who struggle with substance abuse issues from coming forward and getting assistance. Every major medical organization — including the American Medical Association, the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists — has come out against laws that prosecute and punish pregnant women for this very reason.

    As the American College of Obstetricians and Gynecologists puts it:

    “Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing. These approaches treat addiction as a moral failing…

    Pregnant women should not be punished for adverse perinatal outcomes. The relationship between maternal behavior and perinatal outcome is not fully understood, and punitive approaches threaten to dissuade pregnant women from seeking health care and ultimately undermine the health of pregnant women and their fetuses.”

    happyfeet (8ce051)

  26. It’s a political question, and it was settled FINALLY when Congress in joint session confirmed the votes of the Electors. Fuggedabatit.

    nk (dbc370)

  27. *

    happyfeet (8ce051)

  28. the American Medical Association

    lol

    neurotic obamawhore fascists the lot of them

    happyfeet (8ce051)

  29. I agree, daleyrocks. We had a similar conversation about the kid left in the car. There’s a definite tension. I come out on the side of society protecting the kid.

    nk (dbc370)

  30. the kid in question was like forty-three years old

    happyfeet (8ce051)

  31. “Seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing. These approaches treat addiction as a moral failing…”

    Mr. Feets – The law allows the women to avoid punishment if they seek treatment. Does not sound like it is against the above guidelines.

    daleyrocks (bf33e9)

  32. These approaches treat addiction as a moral failing…

    Bite me, pussydoc. It is a moral failing. Nothing is more important addict than his next fix. Or his next pint. Nothing. They sell their blood for it; they sell their kids for it. I knew a drunk who sold her blood to buy booze because her family would not give her money, and her teenage son hanged himself because all she gave a s**t about was her next drink. She’d cry and I wanted to retch at her.

    nk (dbc370)

  33. but they have to put themselves into this crucible Mr. daley

    but don’t get me wrong

    921 drug addicted whores in tennessee and their druggy druggy babies are not things what ripple my pond

    happyfeet (8ce051)

  34. *to the* addict

    nk (dbc370)

  35. “but they have to put themselves into this crucible Mr. daley”

    Mr. Feets – Oh Noes, teh crucible of care is coming to getchoo! What is teh unnecessary nasty bit about whores, anyway, piggy greasy azzed piggy.

    daleyrocks (bf33e9)

  36. i just felt like throwing that in

    here’s the deal

    let’s say we reached a compromise where we only had n number of abortions what we could perform in America in a given year

    and we had to prioritize

    there’s simply no heuristic where your pregnant drug-addled tennessee hoochies wouldn’t take pole position

    happyfeet (8ce051)

  37. “let’s say we reached a compromise where we only had n number of abortions what we could perform in America in a given year”

    Mr. Feets – Between staunch conservatives such as yourself and the Democrats I see the possibility of such a compromise being reached as essentially nil, but it was a nice gesture.

    daleyrocks (bf33e9)

  38. There’s this science fiction writer who wrote about a future so over-crowded that you could not have a baby without a license. The remedy for unlicensed births was to kill mama to make room for the baby. Hmm?

    nk (dbc370)

  39. hmm

    speaking of trashy american moral dilemmas have we talked about this

    this happened two days ago but I’m just now finding out

    because I’m not in the loop

    and it worries me

    happyfeet (8ce051)

  40. we live in a surpassingly poignant failmerica

    one in which satire and public policy have become impossibly blurred

    happyfeet (8ce051)

  41. example numero dos

    happyfeet (8ce051)

  42. was that Harry Harrison, ‘Make Room, Make Room’ which became Soylent Green, it’s one of his less interesting offerings,

    narciso (24b824)

  43. I think Larry Niven, but I wouldn’t swear to it. It’s been a while.

    nk (dbc370)

  44. Bueller? Anyone?

    OT LAWYER QUESTION

    If it turns out that Chicago Jeebus was in fact not a US citizen, what would be that status of all those pardoned by TFG? I’m searching for a ray of hope for my dotage.

    Gazzer (026c8c)

  45. It’s a political question, and it was settled FINALLY when Congress in joint session confirmed the votes of the Electors. Fuggedabatit.
    nk (dbc370) — 7/19/2014 @ 7:42 pm

    Take up parcheesi.

    nk (dbc370)

  46. Isn’t this one of the types of things where they say “Hard cases make bad law” ??

    You really, really, REALLY want to protect little babies, of course … and you’re intending only to go after irresponsible idiot females … but trying to make irresponsible idiot females “responsible” is about like trying to make criminals “law-abiding”.

    That’s one of the main reasons there exists such a thing as the “underclass”. (See anything written by Theodore Dalrymple for examples. Enough to make one weep for humanity’s sake.)

    PS- If your parents are still alive, hug them and tell them you’re eternally thankful that they cared enough to raise you…

    A_Nonny_Mouse (c96e54)

  47. What about the addict who stops checking herself into rehab, having concluded that the net few times won’t be e more successful than the first few times.

    She should put her parents phone number in her back pocket so they’ll know whom to call when they find her body.

    Kevin M (b357ee)

  48. What about the addict who stops checking herself into rehab, having concluded that the net few times on’t be e more successful than the first few times.

    But more pointedly, rehabs don’t cure anyone of anything. All the best of them do is get them dried out, fed and pointed in the right direction. 90% are loaded within the first week out. The other 10% go to those meetings and stand a chance.

    Kevin M (b357ee)

  49. R.I.P.
    James Garner
    “Rockfish”

    mg (31009b)

  50. Compulsory abortion & infanticide solve the problem efficiently.

    Either confine in rehab the drug-addicted mother until birth, justifying confinement by the welfare of the child and the cost to society of damaged infants. (Allow mothers with sufficient conscience to check in but not check out). Or let the drug addicts do as they will and deal with the consequences, admitting that some problems cannot be fixed, especially by laws and government and bureaucratic “charity.”

    Drug addition is not a disease. It is not an “issue.”

    A better policy would provide drug treatment, medical and mental health services, and job skills training.

    This solution again. Show me where similar policies have been efficient (not wasting money) and effective. Are you sure—absolutely sure—you want the government to compel people to live their lives properly?

    provide drug treatment: already exists. Does she mean compulsory, in which case it is jail by another name.

    medical and mental health services: already exists.

    job skills training: already exists. Infants shouldn’t be trained in jobs. Drug addict mothers don’t want jobs, otherwise they’d already have one, working instead of drugging.

    ErisGuy (76f8a7)

  51. The “disease” model for drug and alcohol addiction is psychobabble bullshit that seeks to ignore the moral element that causes it, which is personal conduct. It also ignores the rampant, non-drug use criminality that accompanies the need to feed the addiction.

    SGT Ted (eed28b)

  52. A better policy would provide drug treatment, medical and mental health services, and job skills training.

    Yea, that’s bullshit too. Translated it means: “we need more wealth transfers from responsible taxpayers to the therapeutic industries for treatments that have a 90+% failure rate. Those Social Work/Psychology degree student loans don’t just pay themselves off.”

    SGT Ted (eed28b)

  53. It may not be fully comparable to the problem of addicted women and their fetuses, but I know that the dilemma of rampant homelessness involving mentally ill people has grown increasingly chaotic and extreme in cities like Los Angeles and San Francisco (ie, places chock full of do-gooder thinking, policies, politicians, programs, laws, legal practices, judges, etc) over the past several decades. Or a social-cultural phenomenon that runs in tandem with the do-your-own-thang ethos, which has grown more and more popular since at least the 1960s.

    It has been claimed that such examples of mental illness and severe dysfunction out in public were not so glaringly visible back during the Great Depression, when the economy and safety net were, if anything, more tattered or non-existent than they are today.

    The genie that was let out of the bottle starting over 50 years ago is now pretty much here to stay, and putting him back in is now pretty much impossible.

    Then again, the high crime rates (particularly murders) that started to really hit cities like New York and Los Angeles beginning many decades ago — and made the former originally seem like America’s biggest dystopia, and something it would remain forever — have reportedly (if the stats are reliable) been lowered over the past many years, so never say never. But it probably does help to have a Giuliani occupying upper management instead of a de Blasio.

    Mark (1667b9)

  54. However, critics of the law argue that it has the exact opposite effect: by criminalizing drug use during pregnancy, Tennessee is actually preventing pregnant women who struggle with substance abuse issues from coming forward and getting assistance.

    The law did not prevent this woman from coming forward. It had not been in effect until the last 2 weeks of her pregnancy. She smoked meth 3 days before giving birth. The law went into effect July 1. She was arrested last week. That means she could have sought help from November through July 1 – without fear of arrest.

    Three days before giving birth she could have easily been experiencing contractions and dilation. It didn’t matter enough to get help and quit. For some months she had experienced the baby moving within her body, watched her belly grow, and known all the other changes taking place in her body, and yet none of these life-affirming milestones meant enough to her to stop using or seek help (or at least some sort of confinement).

    Addicts are extraordinarily self-deceived, manipulative and dishonest people. If one chooses to live their life like that while simultaneously harming an innocent, does the state look the other way?

    Dana (4dbf62)

  55. 49. R.I.P.
    James Garner
    “Rockfish”
    mg (31009b) — 7/20/2014 @ 2:40 a

    Holy phuque.

    Steve57 (e07d88)

  56. Link to my Twitter feed below. The guy in the photo with Maverick is my dad.

    twitter.com/gypsyluc/status/490776728441487360

    Icy (8c7ae2)

  57. I’m just amazed that we have completely given up on the idea that women have a moral, physical, economic, and spiritual responsibility to their children. Whether or not this is a “good” law, its detractors assume that it is beneath contempt to even attempt to protect an unborn child and the taxpayer via additional enforcement of a preexisting law.

    bridget (d518d0)

  58. bridget,

    What you see as a moral, physical, economic and spiritual responsibility, the fems see as unjust and unfair roadblocks to my body, my self and nothing should ever be allowed to come between me and my freedom to choose and live how *I* want. My body, My self! And anyway, it’s just a glob of goo, so what’s the big deal…

    Shamed in the worst way possible and too damn self-consumed and stupid to see it.

    Dana (4dbf62)

  59. “Shamed in the worst way possible and too damn self-consumed and stupid to see it.”

    Dana – They don’t even want you babes in the kitchen making sammiches and fetching beer for your men anymore. Truly end times!

    daleyrocks (bf33e9)

  60. Ironically, that thinking assumes that women have no agency and things just happen to them, without any responsibility on their part.

    The other two entities in this, the child and the taxpayer, truly lack any means of preventing a pregnant woman from doing these things. But the “feminists” claim that the woman – who at least has some measure of control over the situation – is the real victim. I just do not understand how that logic can be applied to an adult.

    Again, not endorsing the law, but I do think that the onus should be on the person whose actions are causing the problem.

    bridget (37b281)

  61. Of course, bridget, we are Victims! All of us!

    As I noted above, the arrested mama had 8 months to seek help without threat of being charged under the new law. Kinda makes makes me think love of drugs outweighs love for baby.

    daley, how will you ever survive?

    Dana (4dbf62)


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