A Tennessee law makes motherhood a crime

Brittany Nicole Hudson gave birth to a baby who tested positive for drugs. Hudson sought medical treatment for her addiction while pregnant but was turned away by two facilities because they had no room. (Photo courtesy of Brittany Nicole Hudson.)

By Rosa Goldensohn and Rachael Levy, Special to Equal Voice News

At around midnight on Nov. 13, 2014, Tonya Martin slipped out into the yard that separated her trailer from the one in which her grandparents live on a lot in the eastern hills of Tennessee. Just two months earlier, the Monroe County Sheriff's Department arrested Martin after she gave birth to a son. Her crime: delivering a child at Sweetwater Hospital with drugs — some kind of opioid — in his system.

Martin couldn't shake her addiction or the depression that plagued her. The 34-year-old mother gave up the newborn for adoption. Not long after, Martin's boyfriend found her dangling from the clothesline pole in her grandmother's yard. He tried to resuscitate her, but it was too late.

Martin didn't leave a note.

"That's kind of the way the troubles of life choked her," said her cousin, the Rev. Vernon Webb, 66, who led the funeral service in Tellico Plains, Tennessee. Webb said that 150 people came to Martin's funeral in the poor, tiny rural town (population: 894). Ten years earlier, she had given birth to a stillborn boy, Xavier, and the anniversary was approaching.

"That kind of burned down on her mind," Webb said.

Many states have laws about parental drug use, and government agencies are responsible for protecting children from parents who are neglectful or abusive. But Tennessee's law, signed in April of last year, is different: it handcuffs new mothers upon delivery.

At least nine women in Tennessee have been arrested since the law went into effect. They are the examples, the cautionary tales: six in the city, three in the country, five Black, four White, all poor.

The new law amends a Tennessee criminal-code section so that women may be charged with assault for illegal behavior while pregnant. It threatens up to 15 years in prison "for the illegal use of a narcotic drug…while pregnant." Prosecutors say that a woman's enrollment in drug treatment could serve as a defense in court — but, in a cruel Catch-22, drug-addicted poor women often can't get treatment, even when they desperately want it.

The law is not only incarcerating a handful of new mothers but affecting many more women, as evidenced by months of interviews with women, doctors and health workers. Pregnant women are diving underground in an effort to avoid the fate they've seen in mug shots on the local news.

They are avoiding prenatal care — and when they do get it, they are switching hospitals at the last minute, leaving the state, or giving birth outside of hospitals in the hope of avoiding prosecution and keeping their children. Tennessee's maintenance-treatment options for poor women were already scarce, so women who want help are finding little, if any, help.

Some are detoxing alone, against the strong recommendations of doctors. Even when women try to get treatment, the state is still taking their children.

* * *

Three weeks before Martin committed suicide, on the side of a road an hour's drive away, Brittany Nicole Hudson gave birth in a car. A friend delivered the baby girl, who later tested positive for drugs. Fearing the law, Hudson, a 24-year-old with straight brown hair and black square glasses, didn't take her baby to the hospital.

In the weeks before she delivered, Hudson tried two rehab centers, both of which turned her away because they were full. "I wanted to get help," Hudson said, "but I was scared. I was embarrassed. I knew I was going to end up in trouble."

"You know you can be a good mom if you can get clean," she added, "but you can't do it alone." In November, she was charged with assault, and her mug shot appeared in the news.

Brian Holmgren, a Davidson County prosecutor devoted to child-welfare cases, said the reason Tennessee passed the law is simple. "Drug users are not good parents," he told Alcoholism & Drug Abuse Weekly.

The law was the brainchild of the Tennessee District Attorneys General Conference. Shelby County District Attorney Amy Weirich, a Republican, led the charge in Memphis. The prosecutors said they needed stronger penalties to control addicted women's behavior. They had tried ordering birth control as a condition of probation in Rutherford County, and giving out long-acting contraception in jails.

They wanted a tougher approach than that embodied by a 2013 law, the Safe Harbor Act, meant to address neonatal abstinence syndrome (NAS), the medical name for babies born in a state of withdrawal.

The Safe Harbor Act had given pregnant women priority spots in drug-treatment programs and protected them from losing their parental rights. But Weirich, Holmgren and the other prosecutors said they lacked the ability to crack down on drug-using moms. In 2013, they proposed SB 1391, which made it a felony assault on a fetus for a pregnant woman to use drugs. (This was later amended to just assault, not felony assault.)

The law's supporters argue that their goal is to help pregnant women and mothers who are addicted to drugs, not to punish them. "As DA, my role is to hold people accountable, to enforce the law," Weirich said. "In this case, it's a little bit different. We use the phrase the ‘velvet hammer' to decide the statute…. We're not looking to lock them up, we're looking to get them help."

But the law has been implemented in a different spirit by some. For example, Detective Wes Martin, 28, who arrested the first woman charged under SB 1391, Mallory Loyola, as well as Tonya Martin, sees the law as a scare tactic, saying: "We've had enough of it, we're going to do something about it, and if you don't want your name in the paper, we suggest you get your life straight."

When SB 1391 was up for debate, women's-health advocates raised fears about the dearth of treatment options, even though the state has seen an increase in opioid use over the last decade. But prosecutors waved such concerns away. "I wouldn't want one detail to get in the way of what this bill would do," Sullivan County prosecutor Barry Staubus testified.

When asked what prosecutors would do if a woman had been denied drug treatment, Weirich did not have an answer. "It's hard to answer a hypothetical like that," she said.

* * *

As the bill hit the house floor in Nashville, Carmen Wolf and her mother were calling treatment centers in Memphis. Wolf, 22, with a touch of baby fat still in her cheeks and a stud under her lower lip where a beauty mark might be, was pregnant and trying to stop using heroin.

Wolf knew about the new law, but she thought she might avoid its punishment because she was trying to get treatment.

For months, she and her mother tried every clinic and hospital they could find — about 30 by the time Wolf was due. "We had numbers and places written horizontally and diagonally across papers every which way," Wolf recalled. "Everything is unorganized, because we were in such a hurry to get help."

Almost all of the centers told her no flat out, citing liability issues. One major Memphis hospital, after turning her away, handed her an anti-anxiety pill. Only one center would take her in, but she would have to pay first.

"Come on now, it's all a money thing," Renee Brooks, Wolf's mom, said. "There's no help unless you pay at least $3,000 up front or have private insurance. What about the women that don't have either?"

A handful of drug-rehab clinics in Tennessee accept pregnant women. Only five allow pregnant women and accept TennCare, with fewer than 50 beds available for pregnant women across the state, Al Jazeera America reported in September 2014.

But TennCare has one of the most restrictive eligibility and enrollment processes in the nation, advocates say. Wolf could not be enrolled because she didn't have custody of her first child, Brooks said.

Seven months pregnant, Wolf tried to detox herself at home, screaming in pain. It was too hard and too dangerous. She tried going to a methadone clinic, but said the doses weren't high enough.

"I couldn't do it," she said. "I was getting dope-sick. I could actually feel my baby flipping in my stomach."

Wolf didn't know what to do. "You can risk losing your child if you stop cold turkey, but you get locked up if you don't stop using," she said. "It doesn't make sense."

At the crack of dawn on a Monday, Wolf bought $40 worth of heroin to keep her and her baby stable for the trip across the state line to the small town of Corinth, Mississippi. Wolf was scared that the plan — her "last option" — wouldn't work, and that she'd have to go back to Memphis. "I was just really going on faith that God was going to lead me, direct me to help."

Through a local ministry, she signed up for Mississippi's Medicaid program and got admitted to a hospital, which put her on maintenance treatment. Three weeks later, on April 25, she gave birth to a boy she named Torrion, 5 pounds, 11 ounces.

Wolf gave birth via Caesarean section, and as she awoke, a worker for Mississippi Children's Home Services told her that the state would take Torrion because she had drugs in her system when she arrived at the hospital, according to Wolf. She pleaded with the worker, explaining she had tried for months to get help in Tennessee, and that if she had stopped cold turkey she could have miscarried.

"I don't see how that's right," Wolf said, her voice breaking. "And they ended up taking him anyway."

Wolf relapsed soon after, her mother said. By August, she had overdosed twice. Brooks wouldn't take her eyes off her daughter, fearful that the next time would kill her.

"If she could have gotten help back when she needed it," Brooks said, "then we wouldn't be where we are today. She'd be with her baby. But there was no help."

In October, a friend offered words of support on Wolf's Facebook wall. "Successful mothers are not the ones who have never struggled," she posted. "They are the ones who never give up despite the struggles."

* * *

When a newborn is found to have drugs in its system in Tennessee now, the doctor reports the case to the hospital social worker. The social worker reports it to the Department of Children's Services, and the DCS, in turn, reports it to the sheriff, who can arrest the woman directly.

There is room for discretion. According to numerous interviews with hospital staff and patients, some hospitals drug-test mothers before birth and others do not. Some test all mothers; others test based on appearance and behavior. Some hospitals in poor neighborhoods test everyone; in rich neighborhoods, not so much, doctors in Nashville said. Sometimes, the DCS and the sheriff will decide to arrest. Other times, the DCS alone will pursue the case.

Opening the door of her boyfriend's pickup near the methadone clinic in Memphis, a woman named Megan revealed that her baby, born a month earlier, was still in the hospital.

"DCS is trying to take my baby and my other kids," she said, sounding both defeated and determined. Megan had brought paperwork to the hospital showing she was receiving doctor-ordered methadone. She was reported anyway, as per protocol, though not arrested — an indication of the discretion at play in enforcing the law. Her boyfriend looked at her with agitation; he needed to get going to his construction job. "They want to take all my kids," Megan said as the truck pulled away.

The nine women arrested under the law are a fraction of the number who have given birth to babies with drugs in their system in Tennessee. There were at least 874 NAS births in Tennessee in 2014, according to the state's Department of Health. The women arrested are from some of the state's poorest areas, and all but one used a public defender. Memphis accounted for about 4 percent of the cases in the state, but two-thirds of the women arrested under the new law.

In July, Jamillah Falls, 30, a small African-American woman with almond-shaped eyes, left the Regional Medical Center in downtown Memphis, where she had just given birth to her son, Messiah, leaving him there.

Desperate for treatment for her opioid addiction months before the birth, Falls said she tried the Regional Medical Center, a sprawling white-and-yellow-brick compound known as "the Med," three times. She said she also tried Delta Medical Center, walking past a gleaming steel sculpture and through doors labeled Hospital in bright red letters, hoping for a second chance.

"I had my bags packed," Falls said, "and once they saw that I was four months pregnant, they turned me right around."

Doctors told Falls that pregnant women who use opioids — prescription painkillers like oxycodone and its sister, street heroin — shouldn't stop once they're pregnant. Instead, they should use opioid-replacement drugs rather than detox completely and shock a fetus with withdrawal. But the residential treatment centers in Memphis were detox facilities with no replacement therapy allowed, so Falls was on her own.

Considering the new law, she was afraid not to detox. So Falls, accompanied by her best friend, locked herself in a hotel room and tried to detox there. She tried alone at home. On one occasion, she was taken to a hospital after vomiting for 15 hours, she said. The nurses told her that if she tried to detox while pregnant, she could miscarry or worse.

Falls knew she risked prison to have her child. "I was scared to death," she said. "I did consider leaving the state. But when the time came, I just knew I had to go to the hospital."

After Falls gave birth on July 5, 2014, she walked out of the Med and went into hiding, leaving the newborn Messiah in the nursery. She feared the police were coming for her.

She was right. Police charged Falls with assault and put out an arrest warrant. She called William Gosnell, a white-haired defense attorney who plays classic rock in his office in desolate downtown Memphis. Gosnell escorted her to the police station, where she turned herself in. Falls detoxed in jail.

Judge Tim Dwyer, who presides over the fate of hundreds of Memphis's addicted, has put a sort of informal stay on Falls's case. She must follow his recovery regime for 18 months, her attorney said. She attended a month-long rehab program and now must live in a halfway house and attend four meetings a week, two at the drug court and two in a 12-step program. Dwyer said that, barring a relapse or a refusal to comply, he would drop Falls's assault charge.

If she makes a single misstep, however, she faces four years in prison and the permanent loss of her child.

"I cry almost every day," Falls said from the court-ordered halfway house where she now lives, in her first press interview since her arrest. "All I have are pictures in my phone."

She sees Messiah once a week, for an hour, at a supervised visitation center called Camelot. She said the foster mom "seems sweet."

"I mean," she added, "you know."

(To read the second part of this two-part series, click here.)