Don't put meth moms in jail.

• Author: Sullum, Jacob
• Position: Mallory Loyola

Tennessee's criminalization of drug use during pregnancy is bad law and bad science.

Given the link between alcohol consumption during pregnancy and birth defects, should expectant mothers who drink be arrested for assault? If not, it is hard to see why Mallory Loyola was.

Loyola, who was arrested in July after giving birth to a baby girl who tested positive for amphetamine, is the first person to be charged under a new Tennessee law that criminalizes drug consumption by pregnant women. The law, ostensibly aimed at protecting children, is really about punishing what a chief sponsor described as "the worst of the worst": women who not only consume arbitrarily proscribed intoxicants but do so at a time when they are supposed to be thinking only of their babies.

Loyola, a 26-year-old from Madisonville who according to police admitted smoking methamphetamine a few days before giving birth, may not be an obstetrician's idea of a model patient. But since failure to follow prenatal advice is not usually considered a crime, her treatment can be understood only in light of the arbitrary distinctions drawn by the war on drugs.

Because of the well-established connection between heavy drinking and birth defects, doctors in the U.S. generally recommend that pregnant women err on the side of caution by abstaining from alcohol. Yet while an expectant mother who drinks a glass of wine in public might attract glares from busybodies, she probably will not attract attention from the police.

By contrast, there is no clear link between the drug Loyola consumed and birth defects in humans. According to the American College of Obstetrics and Gynecology, there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine."

The Food and Drug Administration puts methamphetamine (a.k.a. Desoxyn) and other amphetamines (e.g., Adderall) in Pregnancy Category C, meaning "animal reproduction studies [using doses much higher than people generally take] have shown an adverse effect on the fetus," but "there are no adequate and well-controlled studies in humans." Doctors will prescribe Category C drugs, which include antidepressants such as Prozac and Zoloft, for pregnant women if they believe the benefits...