No Safe Harbors: Examining the Shift from Voluntary Treatment Options to Criminalization of Maternal Drug Use in Tennessee

I. INTRODUCTION 203II. BACKGROUND-NEONATAL ABSTINENCE SYNDROME & CRIMINALIZATION OF ITS CAUSE ........206A. Neonatal A bstinence Syndrome 207B. History of Criminal and Civil Penalties for Maternal Drug Abuse 2091. Rise of Criminalization 2092. Modem Courts .........210III. TENNESSEE APPROACHES .........214A. Before the Safe Harbor Act .........214B. The Safe Harbor Act......... 216C. Criminalizing Maternal Drug A buse in Tennessee ........218IV. CONSTITUTIONAL ANALYSIS OF TENN. CODE ANN. SECTION 39-13-107......... 222A. Eighth and Fourteenth Amendments: Cruel and Unusual Punishment .......223B. Fourth Amendment: Warrantless Searches 225C. Void-for- Vagueness: Substantive Due Process 226V. ADOPTING A DIFFERENT APPROACH: HEALTH IMPACT OF CRIMINAL PROSECUTION OF MATERNAL DRUG USE .........229VI. CONCLUSION......... 232I. INTRODUCTIONTennessee police arrested Mallory Loyola for assault in July 2014 based on Tennessee's recently amended assault statute for harm caused to her child based on drug use during her pregnancy. Effective July 1, 2014, Tennessee Code Annotated ("T.C.A.") section 39-13-107 was amended:[A woman can be prosecuted] for assault under § 39-13-101 for the illegal use of a narcotic drug, as defined in § 39-17-402,2 while pregnant, if her child is bom addicted to or harmed by the narcotic dmg and the addiction or harm is a result of her illegal use of a narcotic drug taken while pregnant.3Days after the amendment passed, Mallory Loyola gave birth to a baby girl, and the child tested positive for methamphetamine.4 Police subsequently arrested Mallory Loyola in Monroe County, Tennessee on assault charges.5 Loyola pled guilty to a crime that she did not commit as the statute covers only "narcotic drug[s]," and the statutory language does not include methamphet* amine.6 A judge sent Loyola to drug rehabilitation as a result of a plea agreement requiring her successful completion of treatment.7 Loyola's charges were dismissed in February 2015 when she successfully completed treatment, but the arrest and media attention remain.The Tennessee amendment to the assault statute is inconsistent with the Tennessee General Assembly's intent in the passage of the "Safe Harbor Act" in 2013.9 The Safe Harbor Act was designed to create priority for pregnant women in treatment centers and provide protection from Juvenile Court proceedings where treatment is successfully completed.10 The Safe Harbor Act is not punitive towards women with substance abuse problems, but rather established protections for pregnant women seeking drug treatment.11 This Note discusses the background and implications of the law under which Loyola was charged. Tennessee's amendment to the assault statute fails to address the public health concerns of maternal drug addiction and violates three constitutional protec- tions: (1) the protection against cruel and unusual punishment, (2) the protection against warrantless searches, and (3) substantive due process. Tennessee should return to the provisions of the Safe Harbor Act and expand its effect to focus on the health, safety, and welfare of mothers living with drug addiction.Part II of this Note reviews the history of civil and criminal punishments of maternal drug use and Neonatal Abstinence Syndrome ("NAS"), including the public health concerns that drugs pose to vulnerable children and the cycle of drug abuse. Part III looks at the history of Tennessee's response to NAS, including civil, criminal, and public health remedies. Part IV addresses constitutional violations in elements of T.C.A. section 39-13-107, including the vague statutory language, warrantless searches, and its implication of a "status" crime. Lastly, Part V discusses a public health approach to NAS and proposes the Tennessee General Assembly take no action upon the criminal statute's sunset provision on July 1, 2016. …