Lacey Weld of Dandridge, Tennessee, was 26 years old and in the final weeks of pregnancy when a camera attached to an undercover police officer captured her 40-minute visit to a methamphetamine manufacturing plant. In July, despite her cooperation in the case and testimony against co-defendants, Weld (who pleaded guilty) was sentenced to more than 12 years in prison and five years of supervised release for her involvement in meth manufacturing. The federal judge in the case, Thomas Varlan, determined that "enhanced sentencing" guidelines regarding harm to a child justified around six years of her punishment because she carried a fetus when the crime was committed.
Now a coalition of reproductive-rights organizations is calling on outgoing Attorney General Eric Holder to publicly condemn sentencing practices that impose harsher punishments for women on the basis of pregnancy alone. In a letter sent to the Department of Justice this week, more than 40 groups—including the Carr Center for Reproductive Justice at NYU School of Law, National Advocates for Pregnant Women, and the National Black Network for Reproductive Justice—described the judge's decision to lengthen Weld's sentence because she was pregnant as a blatant violation of constitutional law, human rights, and reproductive justice.
At the very least, as a press release issued by local US Attorney William C. Killian's office put it, Weld's sentencing hike on the basis of her pregnancy was "unique."
"I don't think this particular [sentencing] enhancement was ever designed for pregnant women," Weld's defense attorney, John Eldridge, told me. He points out that laws intended to prevent "substantial risk of harm to life of a minor or an incompetent" do not mention harm against a fetus. As the coalition's letter points out, the Illinois Supreme Court decision Stallman v. Youngquist held that, "Since anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable..." (It's worth noting that the author of a 1990 Harvard Law Review piece agreeing with the Stallman ruling was none other than Barack Obama, and the Tennessee judge's sentencing of Weld is not in line with the Obama administration's advisories on drug addiction during pregnancy.)
Too much exercise, too much caffeine, too little sleep—the list of ways a pregnant woman might cause harm to a fetus is practically endless. And because no human is perfect, the law does not generally permit the punishment of women for behaving badly while with child. It should be noted, also, that many illegal drugs, including meth, are not as damaging to a fetus as legal substances like cigarettes and alcohol, and the effects of prenatal drug exposure are nearly impossible to untangle from other socioeconomic factors like poverty or poor diet.
Weld's appeal, which is pending, will make the case that she experienced illegal discrimination, a violation of the 14th Amendment's Equal Protection clause.
As Sara Ainsworth, director of legal advocacy at National Advocates for Pregnant Women (NAPW), explained to me, Weld's case is not really about the right of pregnant women to use or manufacture meth. It's more about constitutional protections of gender equality and due process. In this case, Ainsworth says Weld was effectively held responsible for drug use, which—unlike possession or manufacturing, the crime Weld pleaded guilty to—is not illegal at the federal level, nor in the state of Tennessee.
"She wasn't being prosecuted for [use]," Aisnworth told me, "and yet it's her ingesting these substances that led to sentencing enhancement."
The DOJ says video footage shows Weld smoking and cooking meth, but according to Eldridge, Weld can only be seen pulling her shirt up over her nose, presumably so as not to inhale fumes. For the judge, "That was enough," Eldridge says, to pin her child's withdrawal symptoms on prenatal meth "addiction."
"I want to apologize for all the harm and wrongdoing I've done to my children," Weld told the court in July. "He could have died, and I just pray and thank God that my sister has him and he's OK."
Eldridge says that Weld's baby tested positive for opioids and methamphetamine, but disputes what caused the withdrawal symptoms.
"There's no proof as to what caused the withdrawal. There was drug use, and there was exposure in a meth lab," Eldridge said. "[Testimony] just said opioids and meth were in the baby's system, so the judge concluded that it was meth exposure [which caused withdrawal symptoms]. I think it's opioids."
One factor in Judge Varlan's decision may have been Tennessee's controversial new law that allows pregnant women who use drugs to be given charges as severe as criminal aggravated assault—which can come with a 15-year-prison term. (Though Weld's meth manufacturing charge was technically unrelated to this law, the notion that pregnant women can and should be punished for drug use was certainly in the air at the time of the sentencing.)
Obviously, in an ideal situation, Weld would not have been using meth or opiods while pregnant. But the question isn't whether her drug use was wise, but whether the courts should have the authority to punish women for health decisions made during pregnancy.
The coalition's letter to the DOJ also argues that the Department of Child Services (DCS) case manager who testified about the baby's health during Weld's sentencing hearing is not a credible witness under the law. Daubert v. Merrell Dow Pharmaceuticals, a 1993 US Supreme Court case, determined that "reliable scientific evidence, including expert testimony, is necessary to prove a causal link between in-utero drug exposure and harm to a child after birth." Neither the DCS case manager nor the Tennessee Bureau of Investigation special agent who testified about the baby's health "are qualified experts under Daubert," according to Weld's defenders.
"In other words, the DOJ and the court drew conclusions about the origins of the child's health problems based on presumption rather than qualified scientific evidence," the letter reads. "Pregnant women, no less than others, have a right to due process of law and the protections afforded by the Rules of Evidence."
According to Answorth, "It's not so much you have a civil right to be pregnant in a meth lab, but that you have the right to be treated in the criminal system on equal footing with someone who is not pregnant."
The coalition hopes that a public response from the DOJ decrying the sentencing as unconstitutional would improve Weld's chances of appeal—and maybe even deter other federal prosecutors and judges from using pregnancy as a factor when doling out prison terms.
"We support treatment and access to health care as a solution for health problems during pregnancy, and addiction is one of those health problems," Ainsworth told me, pointing out that pregnant women facing arrest or punishment may avoid important medical treatment out of fear of punitive consequences.
The greatest concern is that the current climate for reproductive rights—hundreds of restrictions have been put in place around the country in the last few years—may prioritize the fetus over the person carrying it. That leaves women susceptible to incredibly high standards before the law. NAPW has identified hundreds of cases since 2005 in which pregnancy was a determining factor in prosecution and sentencing.
"What this case tells women who are pregnant and cannot overcome their addiction is, really, to get an abortion," said NAPW's executive director Lynn Paltrow. "Because you're going to be punished more harshly otherwise." But with abortion access dwindling, women have less and less control over the outcome of their pregnancies. The worst-case scenario, advocates say, is a society in which women face criminal outcomes for a variety of reproductive decisions, whether that means the choosing to use drugs or choosing to terminate a pregnancy.
That's why reproductive-rights groups are stepping up to make sure the feds know that, in addition to high-profile outfits like the ACLU, women are watching them. We won't allow stigma to dictate policy that affects our health and reproductive autonomy.
Kristen Gwynne is a freelance journalist covering drug policy. Her work has appeared in the Nation, RH Reality Check, and RollingStone.com, among other outlets. Follow her on Twitter.