Federal judge: Pregnancy can be grounds for enhanced criminal penalties

UPDATED: Lacey Weld was sentenced to 151 months, with the judge citing "substantial risk of harm to a minor"

Published July 15, 2014 3:49PM (EDT)

A federal judge is currently considering whether or not a Tennessee woman should face a longer prison sentence because she was pregnant at the time she was involved in a meth manufacturing operation. As the Knoxville News-Sentinel reports, Lacey Weld now faces 10 to 12 years in prison, but if U.S. District Judge Thomas Varlan elects to impose an enhanced sentence on the grounds of child endangerment, she could receive up to 24 years.

The question before the judge is whether or not sentencing guidelines around child endangerment apply to fetuses. But more directly, the issue Varlan is set to decide is whether or not women should be subject to a distinct set of laws by virtue of their pregnancies. This is a question that -- if answered in the affirmative -- will set a dangerous legal precedent for gender discriminatory laws, and could establish de facto fetal personhood by judicial fiat. “I’m sure Judge Varlan is most interested in getting this right because, as with most issues of first impression, another court will be looking at it,” defense attorney John Eldridge said Friday.

While officials are calling this the first case of its kind, criminalizing women based on their pregnancies is hardly a new phenomenon. Between 1973 and 2005, there have been 413 documented cases in which a woman’s pregnancy was a necessary factor in criminal charges brought against her by the state. In each of these cases, women have been deprived of due process, the right to legal counsel and other basic constitutional protections because they were pregnant.

This concept can be hard to understand -- that women can be targeted for criminal prosecution or have the law applied to them in a distinct way because they are pregnant -- but Weld's case makes this legal double standard frighteningly clear. If she hadn't been pregnant while working in a meth lab, she would be facing 10 - 12 years in prison. But she was pregnant, and now faces a potential double sentence.

"What the judge is deciding in this case is whether there will be a set of separate and unequal laws that apply to women from the moment they carry a fertilized egg," Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), told Salon. "That by becoming pregnant, a woman can be arrested for crimes that exist for no one else, that women can be subject to doubly punitive laws."

In addition to the 400 cases documented before 2005, NAPW has identified 350 other cases in the last decade in which a woman's pregnancy was a determining factor in her prosecution or detention. In a 2010 case, a pregnant mother of two fell down a flight of stairs at her home in Iowa. She called the paramedics after the fall to check on her health and the health of her fetus, but also expressed uncertainty to her doctors about whether she should carry the pregnancy to term. She was subsequently charged with attempted homicide under the state's feticide law. And with the arrest of Mallory Loyola in Tennessee last week -- two days after she gave birth to her daughter -- it's clear that the erosion of the rights of women who become pregnant and mothers is far from over.

A caseworker with the Department of Children's Services testified that Weld's son experienced irritation, gastrointestinal problems and had a distended belly at birth which she attributed to Weld's use of meth at the time she was pregnant, but the same stigma and disinformation that characterized the so-called crack baby epidemic of the 1980s seems to be creeping into current narratives around "meth babies."

The absence of good science and medical evidence to ground many of the claims made by law enforcement, politicians and the media about the consequences of prenatal exposure to meth prompted a coalition of doctors, addiction specialists and medical associations to release a letter calling for responsible and accurate reporting on the issue:

Although research on the medical and developmental effects of prenatal methamphetamine exposure is still in its early stages, our experience with almost 20 years of research on the chemically related drug, cocaine, has not identified a recognizable condition, syndrome or disorder that should be termed "crack baby" nor found the degree of harm reported in the media and then used to justify numerous punitive legislative proposals.

The term "meth addicted baby" is no less defensible. Addiction is a technical term that refers to compulsive behavior that continues in spite of adverse consequences. By definition, babies cannot be “addicted” to methamphetamines or anything else. The news media continues to ignore this fact.

The letter also addressed the stigma faced by women who struggle with meth addiction, and dismissed claims that meth users were "untreatable" as lacking "foundation in medical research." (Tennessee, it should be noted, has rejected the Medicaid expansion, making drug treatment an impossibility for many women.) It also warned that the spread of false information could result in "punitive civil and child welfare interventions that are harmful to women, children and families rather than in the ongoing research and improvement and provision of treatment services that are so clearly needed."

The letter was written in 2005, but is just as relevant today. These punitive measures exist in Tennessee and across the country, and have far reaching consequences.

"No case is limited to its facts. Once the precedent is set that continuing a pregnant may subject you to enhanced penalties, there is no reason under the law that it will be limited to women who are found in methamphetamine labs," Paltrow noted, pointing out that Tennessee is home of the Corrections Corporation of America, the largest private prison corporation in the United States.

Weld's son is now two years old and living with Weld's sister. At her hearing, Weld told the court, "I want to apologize for all the harm and wrongdoing I’ve done to my children.” She cooperated with authorities during the investigation, resulting in guilty pleas from her co-defendants, which will reduce her sentence, whatever the judge ultimately decides, according to the News-Sentinel. But the larger questions raised by the case remain.

"These kinds of cases are brilliant distractions from the economic issues in which if you are struggling in low-paid work -- in horrifying and dangerous conditions that do not accommodate your pregnancy -- then too bad for you," Paltrow explained. "In those cases, there is no state support. But we will spend money to lock up a woman for twice as long because she's pregnant.

"So do we value pregnant women and families, or do we see them as potential profit for private prison industries?" Paltrow said of the case. "Whether we value pregnant women and families can't rest on whether we see them as perfect or imperfect, or good or bad. You either value pregnant women and families or you don't."

Updated July 15, 2:30 PM: This piece originally stated that NAPW had identified 200 additional cases in the last decade in which a woman's pregnancy was a determining factor in her prosecution or detention. The organization has actually documented 350 such cases since 2005.   

Updated July 15, 5:50 PM: Lacey Weld was sentenced to 151 months in prison -- just over twelve years -- followed by five years of supervised release. Judge Varlan cited "substantial risk of harm to a minor" as the reason that the enhanced sentence was justified. U.S. Attorney William C. Killian issued a statement on the sentence, indicating the precedent will guide future sentencing. “This nation has seen a tragic rise in the number of babies born addicted to drugs," he said. "Through this prosecution, the U.S. Attorney’s Office sends a message that, should a child, born or unborn, be exposed to a substantial risk of harm through the manufacture of methamphetamine, we will pursue any available enhancements at sentencing."

By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at kmcdonough@salon.com.

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