Last week the state of Tennessee charged a 26-year-old meth addict with assault. Mallory Loyola was arrested earlier this month after she and her new born baby girl were found with traces of the drug in their blood. Loyola, who has a history of drug abuse, was arrested as she left hospital.
Loyola is the first woman to be arrested and charged under a new law brought in by the Tennessee State Assembly which criminalises mothers who use illicit drugs while pregnant.
The legislation does have a provision which allows mothers to avoid criminal charges if they get treatment before the child is born, remain in the program after delivery and successfully complete the program.
The bill was championed by Gov. Bill Haslam who said in a statement that “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.”
Understandably, the law and Loyola's arrest have raised a number of eyebrows in Tennessee and the across world's media. Although the hospital are keeping tight-lipped on the condition of the baby girl, one wonders what will happen to her mother should the child die as a result of the 'assault' that her mother is now charged with. Were the unthinkable to happen, would it become manslaughter? The new law classes this particular 'assault' as a misdemeanour and not a felony but surely the charge would be upgraded if the result of the misdemeanour were more grave.
In a statement Thomas H. Castelli, legal director of the American Civil Liberties Union of Tennessee, said: “This dangerous law unconstitutionally singles out new mothers, struggling with addiction, for criminal assault charges. By focusing on punishing women rather than promoting healthy pregnancies, the state is only deterring women struggling with alcohol or drug dependency from seeking the pre-natal care they need.”
The same group point out that the law allows for the “filing of assault charges against a woman who decides to remain pregnant despite suffering from a substance abuse problem”; the implication being that she had the option of getting an abortion and that she should be congratulated for seeing the pregnancy through.
Perhaps we should hold back on the backslapping for a second though and remember that as the tests and a later confession revealed, Loyola did smoke meth just a few days before giving birth.
On the other hand, who is to know if she tried to quit or not. Perhaps she had a fall off the wagon. Even then when does the life of her victim actually begin?
In Alabama, legislators and judges seem to believe that it begins at conception. In 2006, it enacted the Chemical Endangerment Law to deter people from bringing children to meth laboratories, crack dens and places where drugs are made or distributed. Since its introduction it's interpretation has been somewhat broadened and as a result some one hundred pregnant women have been arrested and convicted for breaking the law due to the interpretation of what constitutes a child. In theory, a woman who snorts or smokes a drug, has sex and gets pregnant is committing a serious assault and they can face up to ten years in prison.
In 2008, Amanda Kimbrough's third child was still-born. She admitted to authorities in Alabama that she had smoked meth during pregnancy. They responded by taking away her two daughters, arresting her and charging her with chemical endangerment of a child; a felony which carried with it a possible life sentence. In the end she pleaded guilty in return for a reduced term of ten years and the right to appeal. She lost her appeal in 2013.
“Criminalising women's actions during pregnancy is a dangerous road to go down,” wrote Guardian columnist Jessica Valenti in response to the Loyola case. “How long will it be before drinking while pregnant is illegal? Will we arrest someone like me who had an occasional glass of wine? What if a woman decides not to take prenatal vitamins?”
While Valenti's argument is similar to debating the damage done by throwing acorns as opposed to dropping a nuclear bomb, she raises a valid question. At what point does a woman stop being an individual and become the vessel of another?
The answer is: probably when she decides of her own free will to have a baby.
It is nice to have the luxury to debate that kind of question. It's the type of thing that myself and Valenti would probably spend hours talking about over a cappuccino in Sloane Square or Merrion Square. We would debate the reasons for Mallory Loyola's addiction problems and sympathise with her but at what point do we look at the part about individual responsibility and stop asking why.
At the centre of this debate is a human being, Mallory Loyola's ten day old daughter who has no concept of 'why' but only 'is'. The state would be guilty of neglect if it didn't do everything in its power to help the child, even if that means giving the mother a bit of a judicial kick in the backside.
Around the World with Jonathan deBurca Butler airs every Monday from 3pm on Moncrieff
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