I have been blogging about some of the new laws that went into effect on July 1 of this year. Well here comes one that has been making news across the country. The new law criminalizes a woman's illegal use of narcotics during her pregnancy in some cases. First, the child has to be born addicted to the drug or harmed by the drug. Second, the harm has to be a result of her use of illegal drugs during her pregnancy.
While this law is very new, 26-year-old Mallory Loyola has become the very first woman arrested in Tennessee for this offense. According to news reports I have read, during her pregnancy, Ms. Loyola had been using methamphetamines, which of course is an illegal drug.
Can they convict her? Well, I don't know if the child suffered any harm or was addicted to the meth after birth. For all I know, the child could have tested positive for the drug and the police took out a charge based on that. Testing positive alone doesn't appear to be a crime as this law is written. It will get a visit from a DCS case worker and a child would probably be removed from the mother's custody, but that is a different matter.
This law does provide for an affirmative defense, but that affirmative defense doesn't seem to really provide any help to the drug addicted pregnant woman. The defense requires that before the child is born, a woman must enroll in drug treatment program, and successfully complete the program even after the child is born. Even if the child is born addicted or harmed by the illegal drug use, the mother has this defense is she competes treatment. That is awesome! We want drug addicts to get treatment, especially drug addicted mothers. There is a huge problem. Drug treatment options for pregnant women are not very plentiful.
I have a client right now that is pregnant trying to get in rehab. I am having trouble finding a facility for her because, get this, she is pregnant. If there are no or relatively few beds available to help these women get treatment, this affirmative defense is useless.
We will see how this law works in the coming year as I am sure Ms. Loyola will be the first of many to be charged with this crime. Let's hope she and all of those women can get the help they need to overcome the horrible life of addiction.