07/11/2014 05:12 pm ET Updated Jul 14, 2014

ACLU Seeks To Challenge Law Targeting Pregnant Drug Addicts

Mallory Loyola, 26, is sitting in a Tennessee jail on charges of assault because her newborn daughter tested positive for methamphetamine.

The American Civil Liberties Union of Tennessee is offering to help with Loyola's criminal defense. But the group is also seeking the right plaintiff -- a drug-addicted pregnant woman, specifically -- to come forward and challenge the new state law that criminalizes women whose babies are born with narcotics in their systems.

"We're looking for a very particular type of woman with a drug addiction who's pregnant and can't get into treatment, either because of long lines or because she's afraid to get arrested," said Thomas H. Castelli, legal director of the ACLU of Tennessee. "We're putting the word out that we're interested in helping someone if they're willing to challenge the law on constitutional grounds. That's a hard sell -- they have to roll the dice that they may lose and go to jail."

The new law, which took effect earlier this month, says a woman can be prosecuted for a criminal assault if she uses an illegal narcotic drug while pregnant and "her child is born addicted to or harmed by the narcotic drugs." Loyola and her daughter both tested positive for meth, which is not considered a narcotic, but she was arrested and charged under the law anyway.

"It's sad to see a child not getting an opportunity to come drug-free and given a chance. We want to see our children have a chance in life," said Monroe County, Tennessee, Sheriff Bill Bivens in a statement. "It's sad when you see children who come out born into the world already addicted to drugs."

Tennessee Gov. Bill Haslam (R) said when he signed the legislation in April that he had "extensive conversations with experts including substance abuse, mental health, health and law enforcement officials," and decided that the intent of the bill "is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs."

Opponents of the bill say it actually deters women from seeking medical care and does nothing to help drug addicts access treatment. The two residential drug treatment facilities in Tennessee where women don't have to give up their children to enroll are in urban areas of the state, creating major barriers for low-income, rural women.

"You're asking people who live 100 miles away from a city to travel 100 miles to get treatment," Castelli said. "And the law says if you don't do it, we're going to put you in jail, instead of saying, 'How can we help you get treatment?'"

The ACLU also claims the law violates the constitutional right to privacy and unfairly criminalizes pregnant women.

"The Supreme Court says you can't criminalize the status of being a drug addict," Castelli said. "This law treats pregnant women differently than any other person by criminalizing the status of having an illness, a drug addiction, when you're pregnant."

Loyola is the first woman so far to be arrested under the new law. She faces up to a year in jail and a $2,500 fine if convicted.



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