The State Where Giving Birth Can Be Criminal

The State Where Giving Birth Can Be Criminal

The State Where Giving Birth Can Be Criminal

Tennessee is arresting new mothers for having used drugs in pregnancy—but in a cruel Catch-22, many can’t get the treatment they need.


This article was reported in partnership with the Investigative Fund of the Nation Institute, with support from the Marguerite Casey Foundation’s Equal Voice Journalism Scholarship.

At around midnight on November 13, Tonya Martin slipped out into the yard that separated her trailer from the one in which her grandparents live on a lot in the eastern hills of Tennessee. Just two months earlier, the Monroe County Sheriff’s Department arrested Martin after she gave birth to a son. Her crime: delivering a child at Sweetwater Hospital with drugs—some kind of opioid—in his system.

Martin couldn’t shake her addiction or the depression that plagued her. The 34-year-old mother gave up the newborn for adoption. Not long after, Martin’s boyfriend found her dangling from the clothesline pole in her grandmother’s yard. He tried to resuscitate her, but it was too late.

Martin didn’t leave a note.

“That’s kind of the way the troubles of life choked her,” said her cousin, the Rev. Vernon Webb, 66, who led the funeral service in Tellico Plains, Tennessee. Webb said that 150 people came to Martin’s funeral in the poor, tiny rural town (population: 894). Ten years earlier, she had given birth to a stillborn boy, Xavier, and the anniversary was approaching. “That kind of burned down on her mind,” Webb said.

Many states have laws about parental drug use, and government agencies are responsible for protecting children from parents who are neglectful or abusive. But Tennessee’s law, passed in April, is different: it handcuffs new mothers upon delivery.

At least nine women in Tennessee have been arrested since the law went into effect. They are the examples, the cautionary tales: six in the city, three in the country, five black, four white, all poor.

The new law amends a Tennessee criminal-code section so that women may be charged with assault for illegal behavior while pregnant. It threatens up to fifteen years in prison “for the illegal use of a narcotic drug…while pregnant.” Prosecutors say that a woman’s enrollment in drug treatment could serve as a defense in court—but, in a cruel Catch-22, drug-addicted poor women often can’t get treatment, even when they desperately want it.

The law is not only incarcerating a handful of new mothers but affecting many more women, as evidenced by months of interviews with women, doctors and health workers. Pregnant women are diving underground in an effort to avoid the fate they’ve seen in mug shots on the local news. They are avoiding prenatal care—and when they do get it, they are switching hospitals at the last minute, leaving the state, or giving birth outside of hospitals in the hope of avoiding prosecution and keeping their children. Tennessee’s maintenance-treatment options for poor women were already scarce, so women who want help are finding little, if any, help. Some are detoxing alone, against the strong recommendations of doctors. Even when women try to get treatment, the state is still taking their children.

* * *

Three weeks before Martin committed suicide, on the side of a road an hour’s drive away, Brittany Nicole Hudson gave birth in a car. A friend delivered the baby girl, who later tested positive for drugs. Fearing the law, Hudson, a 24-year-old with straight brown hair and black square glasses, didn’t take her baby to the hospital.

In the weeks before she delivered, Hudson tried two rehab centers, both of which turned her away because they were full. “I wanted to get help,” Hudson said, “but I was scared. I was embarrassed. I knew I was going to end up in trouble.”

“You know you can be a good mom if you can get clean,” she added, “but you can’t do it alone.” In November, she was charged with assault, and her mug shot appeared in the news.

Brian Holmgren, a Davidson County prosecutor devoted to child-welfare cases, said the reason Tennessee passed the law is simple. “Drug users are not good parents,” he told Alcoholism & Drug Abuse Weekly.

The law was the brainchild of the Tennessee District Attorneys General Conference. Shelby County District Attorney Amy Weirich, a Republican, led the charge in Memphis. The prosecutors said they needed stronger penalties to control addicted women’s behavior. They had tried ordering birth control as a condition of probation in Rutherford County, and giving out long-acting contraception in jails. They wanted a tougher approach than that embodied by a 2013 law, the Safe Harbor Act, meant to address neonatal abstinence syndrome (NAS), the medical name for babies born in a state of withdrawal.

Brittany Nicole Hudson gave birth in a car at the side of a road because she was afraid she’d be arrested if she went to the hospital. She was later arrested anyway.

The Safe Harbor Act had given pregnant women priority spots in drug-treatment programs and protected them from losing their parental rights. But Weirich, Holmgren and the other prosecutors said they lacked the ability to crack down on drug-using moms. Last year, they proposed SB 1391, which made it a felony assault on a fetus for a pregnant woman to use drugs. (This was later amended to just assault, not felony assault.)

The law’s supporters argue that their goal is to help pregnant women and mothers who are addicted to drugs, not to punish them. “As DA, my role is to hold people accountable, to enforce the law,” Weirich said. “In this case, it’s a little bit different. We use the phrase the ‘velvet hammer’ to decide the statute…. We’re not looking to lock them up, we’re looking to get them help.”

But the law has been implemented in a different spirit by some. For example, Detective Wes Martin, 28, who arrested the first woman charged under SB 1391, Mallory Loyola, as well as Tonya Martin, sees the law as a scare tactic, saying: “We’ve had enough of it, we’re going to do something about it, and if you don’t want your name in the paper, we suggest you get your life straight.”

When SB 1391 was up for debate, women’s-health advocates raised fears about the dearth of treatment options, even though the state has seen an increase in opioid use over the last decade. But prosecutors waved such concerns away. “I wouldn’t want one detail to get in the way of what this bill would do,” Sullivan County prosecutor Barry Staubus testified.

When asked what prosecutors would do if a woman had been denied drug treatment, Weirich did not have an answer. “It’s hard to answer a hypothetical like that,” she said.

* * *

As the bill hit the house floor in Nashville, Carmen Wolf and her mother were calling treatment centers in Memphis. Wolf, 22, with a touch of baby fat still in her cheeks and a stud under her lower lip where a beauty mark might be, was pregnant and trying to stop using heroin.

Wolf knew about the new law, but she thought she might avoid its punishment because she was trying to get treatment.

For months, she and her mother tried every clinic and hospital they could find—about thirty by the time Wolf was due. “We had numbers and places written horizontally and diagonally across papers every which way,” Wolf recalled. “Everything is unorganized, because we were in such a hurry to get help.”

Almost all of the centers told her no flat out, citing liability issues. One major Memphis hospital, after turning her away, handed her an anti-anxiety pill. Only one center would take her in, but she would have to pay first.

“Come on now, it’s all a money thing,” Renee Brooks, Wolf’s mom, said. “There’s no help unless you pay at least $3,000 up front or have private insurance. What about the women that don’t have either?”

A handful of drug-rehab clinics in Tennessee accept pregnant women. Only five allow pregnant women and accept TennCare, with fewer than fifty beds available for pregnant women across the state, Al Jazeera America reported in September.

But TennCare has one of the most restrictive eligibility and enrollment processes in the nation, advocates say. Wolf could not be enrolled because she didn’t have custody of her first child, Brooks said.

Seven months pregnant, Wolf tried to detox herself at home, screaming in pain. It was too hard and too dangerous. She tried going to a methadone clinic, but said the doses weren’t high enough.

“I couldn’t do it,” she said. “I was getting dope-sick. I could actually feel my baby flipping in my stomach.”

Wolf didn’t know what to do. “You can risk losing your child if you stop cold turkey, but you get locked up if you don’t stop using,” she said. “It doesn’t make sense.”

At the crack of dawn on a Monday, Wolf bought $40 worth of heroin to keep her and her baby stable for the trip across the state line to the small town of Corinth, Mississippi. Wolf was scared that the plan—her “last option”—wouldn’t work, and that she’d have to go back to Memphis. “I was just really going on faith that God was going to lead me, direct me to help.”

Through a local ministry, she signed up for Mississippi’s Medicaid program and got admitted to a hospital, which put her on maintenance treatment. Three weeks later, on April 25, she gave birth to a boy she named Torrion, five pounds, eleven ounces.

Wolf gave birth via Caesarean section, and as she awoke, a worker for Mississippi Children’s Home Services told her that the state would take Torrion because she had drugs in her system when she arrived at the hospital, according to Wolf. She pleaded with the worker, explaining she had tried for months to get help in Tennessee, and that if she had stopped cold turkey she could have miscarried.

“I don’t see how that’s right,” Wolf said, her voice breaking. “And they ended up taking him anyway.”

Wolf relapsed soon after, her mother said. By August, she had overdosed twice. Brooks wouldn’t take her eyes off her daughter, fearful that the next time would kill her.

“If she could have gotten help back when she needed it,” Brooks said, “then we wouldn’t be where we are today. She’d be with her baby. But there was no help.”

In October, a friend offered words of support on Wolf’s Facebook wall. “Successful mothers are not the ones who have never struggled,” she posted. “They are the ones who never give up despite the struggles.”

* * *

When a newborn is found to have drugs in its system in Tennessee now, the doctor reports the case to the hospital social worker. The social worker reports it to the Department of Children’s Services, and the DCS, in turn, reports it to the sheriff, who can arrest the woman directly.

There is room for discretion. According to numerous interviews with hospital staff and patients, some hospitals drug-test mothers before birth and others do not. Some test all mothers; others test based on appearance and behavior. Some hospitals in poor neighborhoods test everyone; in rich neighborhoods, not so much, doctors in Nashville said. Sometimes, the DCS and the sheriff will decide to arrest. Other times, the DCS alone will pursue the case.

Opening the door of her boyfriend’s pickup near the methadone clinic in Memphis, a woman named Megan revealed that her baby, born a month earlier, was still in the hospital.

“DCS is trying to take my baby and my other kids,” she said, sounding both defeated and determined. Megan had brought paperwork to the hospital showing she was receiving doctor-ordered methadone. She was reported anyway, as per protocol, though not arrested—an indication of the discretion at play in enforcing the law. Her boyfriend looked at her with agitation; he needed to get going to his construction job. “They want to take all my kids,” Megan said as the truck pulled away.

The nine women arrested under the law are a fraction of the number who have given birth to babies with drugs in their system in Tennessee. There have been at least 874 NAS births in Tennessee this year, according to the state’s Department of Health. The women arrested represent some of the state’s poorest areas, and all but one used a public defender. Memphis accounted for about 4 percent of the cases in the state, but two-thirds of the women arrested under the new law.

In July, Jamillah Falls, 30, a small African-American woman with almond-shaped eyes, left the Regional Medical Center in downtown Memphis, where she had just given birth to her son, Messiah, leaving him there.

Desperate for treatment for her opioid addiction months before the birth, Falls said she tried the Regional Medical Center, a sprawling white-and-yellow-brick compound known as “the Med,” three times. She said she also tried Delta Medical Center, walking past a gleaming steel sculpture and through doors labeled Hospital in bright red letters, hoping for a second chance.

“I had my bags packed,” Falls said, “and once they saw that I was four months pregnant, they turned me right around.”

Doctors told Falls that pregnant women who use opioids—prescription painkillers like oxycodone and its sister, street heroin—shouldn’t stop once they’re pregnant. Instead, they should use opioid-replacement drugs rather than detox completely and shock a fetus with withdrawal. But the residential treatment centers in Memphis were detox facilities with no replacement therapy allowed, so Falls was on her own.

Considering the new law, she was afraid not to detox. So Falls, accompanied by her best friend, locked herself in a hotel room and tried to detox there. She tried alone at home. On one occasion, she was taken to a hospital after vomiting for fifteen hours, she said. The nurses told her that if she tried to detox while pregnant, she could miscarry or worse.

Falls knew she risked prison to have her child. “I was scared to death,” she said. “I did consider leaving the state. But when the time came, I just knew I had to go to the hospital.”

After Falls gave birth on July 5, she walked out of the Med and went into hiding, leaving the newborn Messiah in the nursery. She feared the police were coming for her.

She was right. Police charged Falls with assault and put out an arrest warrant. She called William Gosnell, a white-haired defense attorney who plays classic rock in his office in desolate downtown Memphis. Gosnell escorted her to the police station, where she turned herself in. Falls detoxed in jail.

Judge Tim Dwyer, who presides over the fate of hundreds of Memphis’s addicted, has put a sort of informal stay on Falls’s case. She must follow his recovery regime for eighteen months, her attorney said. She attended a monthlong rehab program and now must live in a halfway house and attend four meetings a week, two at the drug court and two in a twelve-step program. Dwyer said that, barring a relapse or a refusal to comply, he would drop Falls’s assault charge when the year is up.

If she makes a single misstep, however, she faces four years in prison and the permanent loss of her child.

“I cry almost every day,” Falls said from the court-ordered halfway house where she now lives, in her first press interview since her arrest. “All I have are pictures in my phone.”

She sees Messiah once a week, for an hour, at a supervised visitation center called Camelot. She said the foster mom “seems sweet.”

“I mean,” she added, “you know.”

* * *

The godmother of NAS research is Dr. Loretta Finnegan, a scarlet-haired, Catholic-raised mother of five who looks like she walked off the stage of the Grand Ole Opry and into a Philadelphia neonatal ward. Finnegan coined the term “neonatal abstinence syndrome” in the 1970s; the Finnegan score for measuring NAS symptoms is still used today.

Finnegan said NAS babies are often jittery and have difficulty sleeping. They may be stiff or have trouble swallowing. The condition is fully treatable, she emphasized, and does not cause death or long-term harm. “NAS is really a very minor medical condition,” she said from her home in suburban New Jersey, “in contrast to what can happen to a baby, both physically and psychologically, if the mother is not in treatment.”

Finnegan is furious with the approach politicians have adopted toward NAS. “It’s gotten to be a ridiculous direction. They don’t know the literature. They don’t know the science. These are people who have ideologies that are against any individual who has an addiction.”

What’s more, pregnant women who use drugs in Tennessee are on a collision course with the now-dominant strain of the drug-treatment world there, which opposes the medication-assisted approach favored by doctors—an approach that is especially essential during pregnancy, when going cold turkey can have grave consequences for the fetus. The twelve-step tradition is abstinence-only, banning the use of methadone or Suboxone, even as studies established these medications as the gold standard for opioid-dependence treatment.

Treatment is also expensive, putting it out of reach for many. Tennessee’s Medicaid program, TennCare, generally does not cover methadone treatment. Outside the methadone clinic in Memphis, people line up on the grass at 5 every morning, some driving from hours away to pay $98 a week out of pocket. A few trucks stall in the parking lot, windshields fogged over, while the passengers go in for their daily cup before work. One woman in pajamas said the clinic let her accrue a balance while she was pregnant, which she was still paying off.

When it comes to methadone, Judge Dwyer is not a believer. He doesn’t allow medication-assisted treatment for participants in his drug-court program, instead mandating twelve-step meetings. “I think that Suboxone is like substituting one drug for another,” he said.

Dwyer’s the first to admit he’s not a doctor. But since certain drugs are illegal, drug problems fall squarely in his court. “I’m trying to keep women from having crack babies, heroin babies,” he said. “I’m just trying to do something when other people aren’t doing anything.”

Dr. Finnegan is not optimistic about court-ordered drug treatment without the option of medication assistance. “Good luck if you’ve got a woman who comes in who has been using drugs for a decade. This is not a way to treat a medical condition,” she said.

Finnegan agrees that women sometimes need treatment before they are able to parent. “She may not be ready yet. She may need more intervention, comprehensive services to deal with all of the issues as a result of addiction. In some cases, the mothers cannot take the babies home—not because they don’t want them or can’t take care of them, but they need to finish their treatment.”

But Finnegan said that jail and the threat of losing custody would not help a pregnant woman treat her addiction, adding that losing a child would be “the last thing this woman needs.” And she worried that women who tried to avoid state tracking would not get needed healthcare. “Very much like abortion, they’re going to go underground,” Finnegan said, “and they’re going to die—as well as their babies.”

Over the first decade of the 2000s, NAS incidence nearly tripled across the country, from one out of 1,000 hospital births a year to three out of 1,000. In 2012, a study found that treatment for NAS costs Medicaid programs nationwide upward of $500 million every year, causing alarm in cash-strapped states.

“The rate of babies born to mothers struggling with addiction spiked,” said Cherisse Scott, founder of the Memphis-based advocacy group SisterReach, which opposed the law. “But what was never really dealt with was why.” Scott sees drug-addicted pregnant women not as criminals but as “people who are dealing with issues of life and poverty and unemployment.”

Cherisse Scott, founder of the Memphis-based SisterReach, an advocacy organization that opposed the law

Lynn Paltrow, executive director of National Advocates for Pregnant Women, shares that view. “The legislature of Tennessee is the first to explicitly declare that their criminal laws may be used to arrest, prosecute and lock up women in relationship to their own pregnancies,” Paltrow said. She noted that the law came in the wake of efforts, in Tennessee and other states, to criminalize assaults on fetuses by other people, which grew out of the anti-abortion movement’s “fetal personhood” campaign. But she points out that the Tennessee law has other implications, too: the state altered its criminal code to leave women subject to assault charges if they commit any unlawful act or “omission” while pregnant.

“It is anyone’s guess what police and prosecutors will consider unlawful acts or omissions,” Paltrow said. In November, a pregnant woman in Greene County, Tennessee, was charged with reckless endangerment under the new law for driving without a seat belt and fleeing the police. Paltrow expects that prosecutors may also go after women for delaying surgery, failing to follow a doctor’s advice for bed rest during pregnancy, or choosing a home birth with a midwife.

She said that, in this way, the law is only partly about drugs. It is also an offensive play in a state-by-state strategy from national anti-abortion groups. Implanting the notion of “personhood” in the criminal code in different places, Paltrow argues, is a strategy aimed at clearing a path to overturn Roe v. Wade.

But it’s not just a Republican effort. The Democratic Party ruled the Tennessee legislature from Reconstruction until the 2008 election. By 2013, the Republican Party had supermajorities in both chambers of the legislature and controlled the executive branch of state government. Yet support for SB 1391 was bipartisan: Reginald Tate, an African-American Democrat from Memphis, sponsored it.

In the debate over the proposed legislation last spring, doctors decried the lack of drug-treatment options for poor women and argued that women would be scared to seek prenatal care, pushing them to flee the state. In the extreme, some women might give birth alone to avoid being reported. In a rare alliance, some anti-abortion activists also rallied against the law, worried that more women would be coerced into abortions.

The anti-abortion forces had quashed a similar bill before, and women’s-health advocates and the local American Civil Liberties Union assumed they’d do it again. But the state health department and the Tennessee Medical Association were working behind closed doors to fashion some compromises. They managed to get the felony charge written out of the bill so that it specified only assault. If a woman is in drug treatment, the law gives her an affirmative defense, meaning that she can still be arrested but now has a defense in court. In this form, the law passed in the House by a vote of sixty-four to thirty.

After passage of the law, which received extensive media attention, doctors noticed changes in their pregnant patients’ behavior. From Nashville to Appalachia, women who use drugs are avoiding prenatal care.

“I had a patient yesterday who said, ‘I don’t know why I even bother,’” said Jessica Young, one of the few doctors in the state who treats opioid-addicted pregnant women, speaking in August. “‘I might as well relapse, because something bad is going to happen anyway.’”

In Knoxville, Dr. Michael Caudle provides prenatal care to opioid-using pregnant women, almost all of whom are poor. At his office across from a Pentecostal church, patients tell him of other women who are hiding because of the law. “They’ll say, ‘I know this is happening, because I know them. There’s a lot more of them out there.’”

By August, two of Caudle’s thirty patients had gone out of state to deliver. He suspects that more have left Tennessee since then. They don’t always know the specifics of the law, but they understand there might be dire consequences if they stay: “They say, ‘I’m leaving because of the state.’”

In Nashville, three pregnant drug users told their friend Katie Cunningham, a former drug user, that they were scared to see a doctor. One went to Alabama to give birth. Another disappeared in September, according to Cunningham: “Her family tried to get her help, but she was too scared.” Around her due date, the woman, named Mack, seemed to vanish. Her friend can’t help believing the worst.

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