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Locking Up Pregnant Drug Users Has Devastating Consequences

If you’re pregnant in the US, use drugs, and don’t do exactly what your doctor says, you could go to jail, harming mother and baby alike.
Photo via AP/Wade Payne

It’s Texas in July and it’s sweltering inside the house where Jessica DeSamito, 30, is currently staying. She’s just discovered that the air conditioner is on hock at a pawn shop. “It’s so hot it’s making me feel ill,” she told VICE News, “I’m on house arrest technically, so I’m trying to find one I can afford on Craigslist that my fiancé can pick up on short notice.”

DeSamito sounded out of breath. She wasn’t sure if she could make it to her car to get her stuff without setting off the ankle monitor strapped to her leg. She yelled to her fiancé: “Hey, will you watch the box and see if the light goes off?”


At least it’s not a jail cell. DeSamito is 25 weeks pregnant, and up until this morning she was locked up at San Antonio’s Guadalupe County Jail.

A military vet with PTSD, DeSamito had been self-medicating with drugs when she was arrested for possession in 2011. When she found out she was pregnant this year, she went into methadone treatment.

DeSamito tested positive in a drug screening and knew she was headed back to jail. But she’d heard that methadone wasn’t an option there. So she emailed National Advocates for Pregnant Women (NAPW), a legal advocacy non-profit, to ask for help.

“She was terrified that she wasn’t going to receive methadone treatment,” Kylee Sunderlin, Soros Justice Fellow at NAPW, told VICE News, “She had been told by medical providers that going cold turkey is not a good idea. She wasn’t just advocating for herself but also for her baby.”

'If you’re pregnant and you don’t do exactly what your doctor says, you could go to jail.'

Besides the nausea, vomiting, and shakes of a sudden detox from opiates, being denied methadone in jail could also have ended DeSamito’s pregnancy. According to a May 2012 opinion issued by the American Congress of Obstetricians and Gynecologists (ACOG), abruptly quitting opiates while pregnant can result in “preterm labor, fetal distress, or fetal demise.” The opinion recommends methodone or buprenorphine during pregnancy, and even says it’s safe to breastfeed.


In 2013, NAPW published a study titled Arrests of and Forced Interventions on Pregnant Women in the United States. The study found that medical misinformation, primarily around drug use, caused an uptick in arrests and detentions of pregnant women. In many cases, the women were reported to police by hospitals and other medical staff.

According to the study: “The data revealed that pregnant women were denied a range of fundamental rights normally associated with constitutional personhood, including the right to life, physical liberty, bodily integrity, due process of law, equal protection, and religious liberty, based solely on their pregnancy status.”

Basically, if you’re pregnant and you don’t do exactly what your doctor says, you could go to jail.

DeSamito’s trip to jail last week coincided with a similar high-profile arrest in Tennessee. Mallory Loyola, 26, became the first woman convicted under the state’s new law that criminalizes drug use during pregnancy. Loyola was arrested and charged with assault on July 8, just two days after giving birth, because she and her newborn tested positive for methamphetamine.

The Tennessee law legislates against newborns suffering from withdrawal symptoms, or neonatal abstinence syndrome (NAS), as if it were the “crack baby” scare of our time. But, according to ACOG, NAS is an “expected and treatable condition that follows prenatal exposure to opioid agonists.”


“Because a woman has become pregnant should not mean that she can be treated separately and unequally under the law,” NAPW executive director Lynn Paltrow told VICE News. “On its face, the law discriminates against women. It specifically targets women who become pregnant. Men who procreate are not going to be charged with any crime based on the fact that they have helped to bring new life into the world and that they are using a criminalized drug.”

The bill was passed in response to reports of a growing trend in NAS cases. Yet in March 2013 a group of over 40 medical experts wrote an open letter stating that NAS “has never been shown to lead to any long-term adverse effects.”

'There's this misguided notion that the interests of the child and the interests of the mother are different.'

“Reporting about this issue that is not based on science encourages policies that undermine maternal, fetal, and child health,” the letter continued. Ironically, in Loyola’s case, meth is not usually thought to cause NAS; instead, the syndrome typically stems from opiate use.

The new Tennessee law is confusing for other reasons. It includes an exception, sort of a “get out of jail free” card, for pregnant women who stay in drug treatment programs until after the baby is born. But the law states that the woman must “complete” the program. Completion is a foggy notion when it comes to opiate addiction — many people stay in methadone treatment for years or even a lifetime.


A contradictory Tennessee law passed in 2013, the Safe Harbor Act, seems based on a more realistic understanding that drug addiction isn’t like a maternity dress one puts on and takes off at whim. This legislation makes confidential drug treatment for addicted pregnant women a priority. Nowhere does it state that addicts should be reported for arrest.

“There's this misguided notion that the interests of the child and the interests of the mother are different,” Sunderlin told VICE News. “I think we often lose sight of the fact that what is good for the mother is also what is good for the baby.”

That’s the crux of the problem, advocates say: The laws supposedly designed to ensure the health and safety of fetuses and newborns often result in their harm.

Micaela Cadena of New Mexico’s Young Women United has worked with a group of around 30 women who have experienced pregnancy and drug use in some concomitant form. She told VICE News that criminalizing pregnant drug users can have devastating consequences.

“Rather than being irresponsible, which is the prevailing stigma, these women are concerned with the safety of their families,” Cadena said. “There are really high rates of women avoiding prenatal care. When we ask them why that is, the overwhelming reason they haven’t gone to get the care they need is because they’re terrified of losing their children.”

Cadena told VICE News that even though her state doesn’t have a law criminalizing drug use during pregnancy, many medical officials think that it’s their responsibility to report the women to police. This creates a pattern that deters pregnant drug users from getting medical care.

Both Loyola and DeSamito can attest to that. Loyola was arrested two days after giving birth. Taking a newborn baby’s mom away during the initial bonding phase is not exactly recommended, to say nothing of Loyola’s need for postnatal care.

DeSamito told VICE News that prescribing methadone to recovering opiate addicts is a method of treatment that "saves lives." “Women need a chance to recover and give their baby something better.”

Follow Mary Emily O’Hara on Twitter: @maryemilyohara