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Should Pregnant Women Who Drink Alcohol Go to Jail?

Katrina Wharton |15, November 2014


We know drinking alcohol while pregnant can be more than a poor personal choice. It can have devastating and lifelong effects on the child, such as mental retardation, emotional and behavioral consequences, and learning disabilities.

We also know that smoking is unhealthy for babies in utero as well as smoke being around a baby or young child. It can cause low birth weight, prematurity, or asthma in the case of children who are already born.

In addition, a factor is participating in any dangerous or possibly dangerous activities such as horseback riding, certain physical activities that have a possibility of a fall or an impact.

But, where are the lines of personal accountability, personal choice and the responsibility of law in all these circumstances?

On July 2013, we saw a controversial law put into effect when 26-year-old Mallory Loyola tested positive for methamphetamine, and so did her newborn child. She was the first person in the state of Tennessee to be charged under a new law that allows for a woman to be prosecuted for the illegal use of a narcotic drug while pregnant, if her baby is harmed or born addicted to the drug.

According to Monroe County Sherriff Bill Bivens, Loyola admitted using the drug mere days before giving birth to her child. Bivens says he hopes 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.

However, while everyone can agree that it's a tragedy for a child to pay for the parent's poor choices and behaviors, charging pregnant women or new mothers with a crime for their addiction may not have the intended outcome.

Thomas Castelli, legal director of Tennessee's ACLU, or American Civil Liberties Union, states, "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 word from the White House Office of National Drug Control Policy, Michael Botticelli, stated, "What's important is that we create environments where we're really diminishing the stigma and the barriers, particularly for pregnant women, who often have a lot of shame and guilt about their substance abuse disorders. We know that it's usually a much more effective treatment and less costly to our taxpayers if we make sure that we're treating folks."

In Loyola's case, she was freed from jail after making a 00 bail, and was charged with a misdemeanor. The law allows women who are charged while pregnant to enter a treatment program and if they successfully complete the program, they can use that as a defense.

The National Organization on Fetal Alcohol Syndrome, or NOFAS, has issued a statement regarding criminalization of alcohol use by pregnant women.

"NOFAS opposes any law or policy that would impose a criminal penalty on pregnant women for drinking alcohol. Alcohol use during pregnancy is a serious problem, yet criminalization is not a solution."

The group cautions that having such laws in place may actually increase the incidence of Fetal Alcohol Syndrome, since women will be fearful to seek help for their disease of alcoholism and without help or support, they may continue drinking. Such laws would make it less likely that a pregnant woman would disclose drug or alcohol use to their physicians, and therefore not receive appropriate treatment for their condition.

Additionally, such laws are a slippery slope. How do we set laws criminalizing drug use prenatally, but not alcohol, when alcohol while legal, is much more harmful than any known illicit drug. What about women who abuse prescription drugs? What if a woman has gestational diabetes and limits her diet to Krispy Kreme and McDonalds? What about the woman who had one too many in her earliest weeks of pregnancy, when she was not even aware of a pregnancy?

Criminalization over treatment sets a dangerous precedent, not just for women's privacy rights, but for healthy outcomes for babies. When we prosecute a pregnant woman for her addiction, we signal a warning sign to all other pregnant women struggling with poor lifestyle choices or substance abuse issues. They will be shamed or frightened into silence. That's a high price for us all to pay.

We would love to hear from you! Share your thoughts on drinking alcohol during pregnancy in the comments section below.

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Showing 1 - 2 out of 2 Comments
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Kathy Jan 23, 2015 11:43:07 PM ET

Simple answer is: YES! They should be imprisoned for attempted murder! :/

Casewerker Jan 25, 2018 05:01:24 AM ET

Yes, for child abuse.

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