By Tony Gonzalez, The Tennessean
Tennessee women who take illegal drugs during their pregnancy cannot be arrested for the harm they do to their babies. But some ended up in jail anyway.
That's because some police and prosecutors - unaware state law changed last year - pursued criminal charges thinking they had the authority to do that. They did not realize lawmakers eliminated their ability to charge women with assault or homicide against their unborn children.
Even the state attorney general overlooked the change when he issued a written opinion Jan. 7 about whether women could be prosecuted. A lawmaker had asked for clarity on the issue.
"It baffles me. It makes me angry. It makes me embarrassed, going into jail for all of that, for something you can't even be charged with anymore," said April Moyer, a Smyrna woman jailed in February and charged by prosecutors before they realized she had not broken any law.
The attorney general revised the opinion Feb. 1 to make it clear women were not to be charged. Moyer's case was one of two in Rutherford County in which Assistant District Attorney Laural Hemenway dismissed charges, calling the law change an "out of the blue" surprise, but one she would uphold.
The failures of officials to follow the law led to women being arrested and entangled in custody battles complicated by their charges.
Since The Tennessean began asking authorities about such cases, a Campbell County prosecutor read the attorney general's opinion for the first time and dropped charges against two women. Other district attorneys said they would review cases, and some pointed to dismissals in progress.
Hemenway said she would prefer to be able to bring charges, especially against women like Moyer, who have used drugs during multiple pregnancies. She vowed to review cases if defendants ask questions. But she and some other prosecutors want the law to change again, to criminalize prenatal drug use.
Legislators are considering such a proposal. Only two states - Alabama and South Carolina - allow such prosecutions, according to the National Advocates for Pregnant Women, an organization that monitors and opposes such punishment.
Moyer said getting her charges dropped didn't end her dispute with officials.
She didn't know what happened behind the scenes of her case until speaking with The Tennessean. She said the same authorities who interrogated her in the hospital and took her to jail never explained why the case was later dropped. She wondered if the dismissal was the mistake - fearful the charge could resurface.
Moyer doesn't expect much sympathy.
She and others tested positive for prenatal drug use, or admitted it outright. Medical records filed in courts show the birth defects and costly hospital stays that accompany many drug-addicted newborns. These babies are often born premature and suffer seizures, vomiting and hyperactivity.
Drug-addicted births have increased in Tennessee - from 56 in 2001 to 672 in 2011, according to state health officials now scrambling to create programs and laws to turn the tide.
Whether that means treatment or punishment - or a bit of both - remains to be seen.
Few knew of change
Tennessee law changed to protect pregnant women on July 1, 2012, but it would be months before many authorities found out.
For years, authorities have not been allowed to charge women with child abuse for damage done to fetuses during pregnancy. Instead, prosecutors turned to aggravated assault or reckless endangerment charges against drug-using moms.
The change aimed to stop that tactic by preventing charges for "any act or omission by a pregnant woman with respect to an embryo or fetus with which she is pregnant."
Supporters say the change brought Tennessee in line with laws in 47 other states and created a defense against the "slippery slope" of charging women for their conduct while pregnant. Drug-specific charges could set the stage for women to be arrested for disobeying a doctor's prenatal recommendations, said Farah Diaz-Tello, staff attorney for the National Advocates for Pregnant Women.
Law changes are explained each year to police, prosecutors, defense attorneys and judges through legislative memos or professional conferences. But many authorities said they didn't hear about this one.
At least a half-dozen women were arrested or indicted after the law became effective, according to court records and news accounts.
Authorities defend some cases because they say the drug damage happened months earlier, while it was a crime.
As legislators prepared to reconvene this year, a state senator asked the attorney general's office to consider the issue.
The opinion came out Jan. 7 and the attorney general office phones started ringing with questions about whether the attorney general had overlooked the law change.
Sharon Curtis-Flair, spokeswoman for the attorney general, attributed the mistake to an oversight during research. The office pulled the opinion and began a revision.
Cases questioned, defended
The revised opinion on Feb. 7 triggered prosecutors to begin dismissing charges.
Rutherford County's Hemenway stands by convictions of three women who gave birth after the law changed. She said drug tests on the newborns, or statements by those mothers, place their drug use before July 1.
In one, a 30-year-old Murfreesboro woman gave birth to medically fragile twins on Sept. 5 after using cocaine and opiates, and "very rarely" attending prenatal visits, according to court records.
The mother of five had already decided to give up the children to adoption, and numerous medical and criminal records released just before her plea hearing reveal she had charges for driving on a revoked license, convictions for theft and drug possession, a child abuse charge dismissed in 2006 and a child neglect conviction in 2009.
It's the kind of case some prosecutors believe should be fair game for criminal charges.
The woman pleaded guilty, was placed on probation, failed to report her whereabouts and was jailed again.
Another of Hemenway's cases has raised concerns for 21-year-old mother Emily Crum.
Her charging document didn't specify an exact incident date for her drug use, although it does refer to Crum smoking cigarettes and failing to get prenatal care for 12 weeks.
Crum disputes the charges and blames the arrest for complicating her effort to get her daughter back from the custody of the Department of Children's Services.
"The day before I was supposed to bring my daughter home from the hospital, they took me to jail," Crum said. "My daughter is almost 8 months old, and I've never spent time alone with her. If I wouldn't have gone to jail, I wouldn't have lost my custody."
Moyer said her charges also could affect her ability to get her daughter back.
She knows the DCS custody process. She said her first baby tested positive for marijuana. Not ready to be a parent, she said she gave him up to adoption in 2010. A year later, she had to give up her second baby, a boy, after a domestic dispute with her ex-husband.
"I know I made a mistake, yes. I did," Moyer said. "But I'm trying. ... It takes awhile for some people to learn from their mistakes."
Moyer, who admits to a longtime cocaine addiction, says she's been clean for five months. This time, she's trying to meet the demands of DCS and a judge, which will determine whether she can regain custody of the infant girl taken from her at the hospital.
She ticked through a common list of drug abuse, anger management and parenting courses that she must complete. She's getting her own apartment and looking for a job.
Meanwhile, earlier this month, two more mothers were arrested. In Campbell County, north of Knoxville, Sheriff Robbie Goins announced charges to local media as "priority" cases and praised his detective.
That region's district attorney, Lori Phillips-Jones, dismissed those charges last week after questioning by The Tennessean.
"Until you called, I was not aware of the AG's opinion," Phillips-Jones said. "Even though we don't like it, we don't think we can charge the two ladies in these cases."
Bill Jones, the public defender for one of them, said he was ready to show the attorney general's opinion. Now he's watching for other law changes, including a proposal in front of lawmakers, HB1295, that would change things again, allowing prosecutions of women for prenatal prescription drug abuse.
"Nobody's defending the conduct of taking drugs while you're pregnant. The girls who do it know it's bad," Jones said. "But the fix for it was worse than the problem."