Bad medicine in Tennessee for pregnant and drug-addicted women

A July law could lock up new mothers who are on drugs, a move that some say will inflict even more harm

Jamillah Falls appears in drug court on charges of assault for using heroin while pregnant, July 31, 2014, in Memphis, Tennessee.
William Deshazer / Commercial Appeal / Landov

KNOXVILLE, Tenn. — On a muggy day in May, the support group for pregnant women starts at 7 a.m. sharp, right after morning meds, at a methadone clinic in a dingy neighborhood here. Two patients, Mona and Jen (whose names have been changed to protect their privacy), are in an upstairs conference room. With them is a counselor and Zac Talbott from the National Alliance for Medication Assisted Recovery, or NAMA, a patients’ rights advocacy group. The gold standard of care for women who want to quit opiates like heroin or hydrocodone during pregnancy, methadone is itself a prescription opiate that works by reducing cravings and decreasing the risk of relapse. Most importantly, it eliminates withdrawal symptoms, which are especially dangerous for pregnant women because withdrawal can cause premature labor or stillbirth. Today, the group is talking about SB1391, a new state law that went into effect July 1 and gives prosecutors the power to jail women who give birth to babies “addicted to or harmed by” illegal drugs.

“Will they take my child?” asks Mona. In her mid-30s, with large brown eyes and a nose ring, she anxiously twirls the cord on her gray hoodie as her blond, school-age daughter silently draws elaborate fluorescent designs on the conference room white board. “I’ve never had any trouble with my children,” she says.

“If that happens, I will launch a personal crusade. I would remortgage my own home,” Talbott says. “We’ve got your back, and we’re serious about that.”

Talbott and NAMA are among a growing band of addiction specialists, doctors and advocates who are deeply apprehensive about the new law. While supporters of SB1391 say it will serve as an incentive to get pregnant addicts into rehab, they worry that women will stop seeking medical help for fear of being prosecuted.

“Once word gets out, women won’t access prenatal care or treatment,” predicts Karen Pershing of Knoxville’s Metropolitan Drug Commission. “We’re going to see more negative birth outcomes than we’re seeing now. I’m also concerned about women not going to the hospital to deliver.”

Women in Tennessee faced significant barriers to prenatal care even before SB1391: 4.6 percent of all women who gave birth in 2013 didn't start prenatal care until their third trimester, and 1.9 percent received no prenatal care at all. Meanwhile, Tennessee has yet to accept federal funds to expand Medicaid under the Affordable Care Act, despite the governor's wish to "push forward" on a resolution. And the state's Medicaid program does not cover methadone treatment for adults. 

In theory, a woman who gives birth to a sick baby could avoid the misdemeanor-assault charge that SB1391 carries by successfully completing a court-approved drug-rehab program. But for a number of reasons, including widespread stigma of methadone and insufficient spots in the clinics, seeking treatment may not protect pregnant addicted women from a stint in jail. 

‘Once word gets out, women won’t access prenatal care or treatment. We’re going to see more negative birth outcomes than we’re seeing now.’

Karen Pershing

Metropolitan Drug Commission in Knoxville

Within a month of SB1391 going into effect, two women were charged under the law. Mallory Loyola, 26, of Madisonville, in eastern Tennessee, was charged with assault after she gave birth on July 6 to a baby girl who tested positive for amphetamine. Jamillah Falls, 30, of Memphis was charged with assault after delivering a baby girl who tested positive for heroin and marijuana.

Tennessee has the second-highest rate of prescription opiate consumption in the nation. Babies born to mothers who use opiates during pregnancy sometimes suffer from withdrawal at birth, crying inconsolably and having difficulty feeding. A few have seizures. This is called neonatal-abstinence syndrome, or NAS. If properly managed, NAS is a transient condition, treated with a tapering dose of opiates to wean the baby off the drugs without causing withdrawal. Dr. Robert Newman, president emeritus at New York’s Beth Israel Medical Center, says, “There has never been any evidence suggesting that [NAS] leads to lasting problems.” It is misleading to refer to NAS babies as “addicted,” he adds, because a newborn can’t meet the behavioral criteria used to define addiction.

However, if a woman doesn’t disclose her drug use, her baby may experience unnecessary withdrawal symptoms because doctors don’t realize that the baby needs treatment, say addiction specialists. And mothers in methadone treatment can still give birth to babies in withdrawal. If a woman seeks medication-assisted treatment for a heroin addiction and her baby is born with NAS, the legal question becomes, what caused the harm, the heroin or the methadone?

Jen from the clinic, pregnant and hooked on heroin, says her family doesn’t understand her treatment. Her mother sees methadone use as just another form of addiction, while her sister is using SB1391 to pressure Jen to sign over custody of her 5-year-old daughter. Jen says her mother resents the $25 Jen spends on gas each day to get to the clinic and accuses her of “taking money” from her child.

“I don’t want my mom there when I have this baby,” Jen says.

Despite studies that show the efficacy of methadone in curbing addiction, here in Tennessee methadone is almost as stigmatized as street drugs — even among doctors, social workers and those who work in the criminal-justice system. 

‘Somebody’s got to look out for unborn children.’

Wally Kirby

proponent of SB1391

State mental health authorities have said repeatedly that they don’t want to lock up women in methadone treatment, but they have no authority over the prosecutors, Rodney Bragg, assistant commissioner of the Tennessee Department of Mental Health and Substance Abuse Services, said in an interview with Alcoholism and Drug Abuse Weekly.

If a woman manages to start medication-assisted treatment before she gives birth, there’s no guarantee that a judge will regard this kind of therapy as a legitimate treatment program for the purposes of a defense under the law, says Wally Kirby, executive director of the Tennessee District Attorneys General Conference. A Tennessee addiction specialist who offers medication-assisted treatment and has worked with the state’s drug courts said that many judges still have “a 1960s mentality” when it comes to medication-assisted treatment and dismiss it as a way of coddling addicts in the guise of recovery. (The doctor asked not to be named for this story.) Newman, too, has seen “an endless list of cases” in which judges tell pregnant women on methadone, “I dont believe in methadone treatment, not going to permit it.” Talbott agrees. “Tennessee has not rushed to embrace science,” he says.

Further, the law only allows an affirmative defense if a woman successfully completes a treatment program, but unlike a 28-day detox, medication-assisted recovery doesn’t have a clear end date. (Well-known examples of an affirmative defense are insanity and self-defense; even if the defendants did what they were accused of doing, their behavior was not a crime.) Some patients transition to long-term maintenance that can last for years. Newman likens maintenance therapy to using insulin to treat diabetes. It’s a lifelong process, he says.

Methadone patients face additional barriers to successfully completing treatment. Under federal law, they must report to a clinic at least six days a week for the first three months of treatment. In some parts of east Tennessee, the nearest methadone clinic is more than 50 miles away, forcing patients to make the long trip for three months. The clinic that Jen attends is a 25-mile drive from her home.

The influential Tennessee District Attorneys General Conference backed SB1391 and Kirby says it will be up to a judge to decide whether a treatment program is a legally acceptable defense, but predicts methadone won’t qualify. The law doesn’t say what kind of treatment qualifies and the state’s substance-abuse department says there are no plans to develop any guidelines. According to a nationwide survey, only 26 percent of drug courts allow pregnant women to use opiate agonists such as methadone as part of their treatment.

“Somebody’s got to look out for unborn children,” Kirby says. An earlier version of SB1391 would have given prosecutors the power to charge women with homicide if their drug use caused a miscarriage, but that language was stricken before the governor signed the bill. According to Kirby, the goal of the legislation is to hold a “velvet hammer” over the heads of pregnant drug addicts to make them get treatment.

‘If family services are not available, a mom is not going to choose treatment.’

Rebecca Kelly Cardona

clinical director, Great Starts treatment program

But it’s not a lack of motivation that’s stopping more women from enrolling in treatment programs, say advocates.

SB1391 didn’t create any new openings in treatment programs or provide additional funds to care for new patients — and the system is already strained. Mary Linden Salter of the Tennessee Association of Alcohol, Drug and Other Addiction Services, estimates that about 4,700 pregnant women in the state need treatment for addiction to illicit drugs each year. There are nowhere near that many spots available. Pregnant women have priority, though not all programs are equipped to treat them. Some take only men.

Dr. Jessica Young says there’s already plenty of demand for treatment. Her program at Vanderbilt University, which treats about 50 women at a time, typically has a six- to eight-week waiting list. Young says pregnancy is often a poor woman’s first opportunity to seek treatment for a drug problem because she’s not covered by the state’s Medicaid program until she gets pregnant.

In addition, only a handful of residential programs in the state allow pregnant women to attend with their children. Rebecca Kelly Cardona is the clinical director of one of them, the Great Starts program in Knoxville. She says most of her pregnant clients are already single mothers, and “if family services are not available, a mom is not going to choose treatment.”

But Great Starts has a waiting list of half a year or longer, and the law doesn’t say what happens if a woman seeks treatment but can’t get into a program.

CeeGee and her infant daughter, Blessed.
Lindsay Beyerstein

Lack of stable housing is another major barrier to recovery, Kelly Cardona adds. State law gives priority to pregnant women for drug treatment, but not for housing while they’re in outpatient treatment. There’s an 18-month waiting list for subsidized housing for women with children, she says. A criminal conviction will reduce a woman’s chances of getting housing in the future.

Many of the residents at Great Starts come from families in which addiction is a multigenerational problem. CeeGee (identified by her nickname to protect her privacy), 31, who has been in treatment for five months for alcohol and marijuana addiction, says her grandfather started giving her beer when she was in diapers. “If I could hold it in my hand, I could drink it,” she says.

CeeGee lives with her infant daughter, Blessed, in a room she shares with another recovering addict and her baby in the Great Starts treatment center. In addition to providing 12-step programs designed to fight addiction, the group teaches job and parenting skills and supervises visits with children who have been taken away by social services. Great Starts is helping CeeGee reconnect with her three other children, who have never met their baby sister. Her oldest son is 12, and she hasn’t seen him in eight years.

Sharida Payne, 29, arrived at Great Starts on May 12 with her 9-year-old daughter and an infant daughter. A longtime opiate addict, Payne used prescription pills throughout her pregnancy, seeking outpatient help when she was about six months along. Her caregivers warned her not to quit cold turkey while she was pregnant, so Payne looked into methadone treatment. But one clinic wasn’t taking Medicaid patients like her, and the other had what she calls a “ridiculously long” waiting list. The baby developed withdrawal symptoms, including muscle twitches, a few days after birth and spent three and a half weeks in the hospital.

“It was awful,” Payne says. “It was very painful to see her in the incubator, jerking from head to toe.” At first, Payne couldn’t hold her or touch her, except to stroke her through two little holes in the incubator wall. After she got out of the hospital, the baby was sent to live with a host family until a slot opened up for her family at Great Starts.

Payne says that if SB1391 had been in effect when she gave birth, it might have scared her away “from going to the hospital and seeking care for my baby, because I wouldn’t want to end up in jail.” She wishes there were more treatment options available so that pregnant women could get help before they deliver.

Sarah Ramsey plays with her 8-month-old daughter, Willow, at the Child and Family Tennessee Great Starts/New Beginnings program in Knoxville in 2013. Ramsey went to the facility in October of 2012 after spending five months in jail and delivered her daughter in November.
Amy Smotherman Burgess / Knoxville News Sentinel / Zumapress

According to Kelly Cardona, pregnant drug users are unfairly stereotyped as not wanting to stop or not caring about their children. The women she works with desperately want to stop, she says, but they can’t. “People don’t understand the disease.”

Though 17 other states consider prenatal drug use to be a form of child abuse under civil child-welfare laws, with SB1391, Tennessee became the first to explicitly define harming a fetus with prenatal drug use as assault. Tennessee has had so-called fetus-as-victim laws on the books since 1989, after a drunken driver killed a woman who was eight months pregnant. The original law only applied to viable fetuses, but in 2011, it was broadened to include nonviable fetuses. In 2012, the state legislature expanded the definition of an assault or homicide victim to include an embryo at any stage of development. The 2011 version of the law contained no exception for a woman’s actions toward her own fetus, so a pregnant woman in Tennessee could have been charged with criminal homicide for causing her own miscarriage, though legal scholars and medical professionals interviewed for this story could not recall a case in which this actually happened.

As Lynn Paltrow of National Advocates for Pregnant Women, a nonprofit that focuses on the rights of pregnant women, explained, the law was amended in 2012 in an effort to clarify its original intent. The amended law exempted women from prosecution for behavior that harmed their fetuses. Now, SB1391 narrows the exemption to include only legal behavior. Paltrow argues that the law could theoretically be applied to a woman who harmed her fetus by underage drinking or reckless driving. Professor Dwight Aarons of the University of Tennessee College of Law agrees that if prosecutors use this law recklessly, it could turn a minor infraction like jaywalking into a much more serious offense if a woman’s fetus is harmed — though he admits this would be an extreme example. He adds that asking women to live in a particularly careful manner just because they’re pregnant makes them “third-class citizens” under the law.

On Sept. 4, a third woman, Tonya Denise Martin, was arrested. Martin, who gave birth to a baby boy at Sweetwater Hospital, 45 minutes southwest of Knoxville, admitted to using opiates during her pregnancy. She refused drug treatment when social workers offered it to her during her pregnancy and her son subsequently tested positive for opiates and was diagnosed with NAS. Martin spent five days in jail, according to the Monroe County Sherriff’s Department. On Sept. 9, a plea deal was finalized that sentenced Martin to time served. 

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