Analysis Law and Policy

Judge Rules Wisconsin Law That Sent Pregnant Woman to Jail Unconstitutional

Farah Diaz-Tello

Tamara Loertscher has been embroiled in a suit with the State of Wisconsin challenging the constitutionality of the 20-year-old law that led to her jail time. On Friday, a federal judge blocked the law—finally marking some good news after months of legislative attacks on reproductive rights in the state.

In 2014, Tamara Loertscher voluntarily sought medical help for depression and a severe thyroid condition that caused debilitating lethargy, both of which she had been self-medicating with marijuana and methamphetamine. She also suspected she might be pregnant. Although Loertscher was confident in her ability to abstain from drugs once her medical concerns were treated, hospital staff confirmed she was pregnant and reported her to social service authorities. After a hospital telephone hearing in which she was denied counsel, she was eventually held in the Taylor County Jail for 18 days, during which she was held in solitary confinement and threatened with being tased.

After her release, Loertscher submitted to drug testing throughout her pregnancy, which confirmed that she had ceased all use of substances on her own. She gave birth to a healthy baby in January 2015.

Since the incident, Loertscher has been embroiled in a suit with the State of Wisconsin challenging the constitutionality of the 20-year-old law that led to her jail time. On Friday, a federal judge blocked the law—finally marking some good news after months of legislative attacks on reproductive rights in the state.

Wisconsin’s 1997 Act 292, also known as the “Cocaine Mom Law,” threatened people who use drugs or alcohol during pregnancy with involuntary detention and potential separation from their children. The law was the legislature’s response to a 1997 Wisconsin Supreme Court ruling that a fetus was not a “child” within the meaning of the Children’s Code, the law that confers jurisdiction for the state to seize endangered children.

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In the 1990s, amid media frenzy over the now-debunked “crack baby” fears, the state Department of Children and Families (DCF) had been “taking custody” of fetuses to force pregnant people into involuntary treatment for drug or alcohol use and charging them with child abuse and neglect. But after the 1997 ruling, without a “child” involved, DCF lost the power to subject pregnant adults to Child in Need of Protective Services (CHIPS) proceedings. So the legislature devised a convoluted law that created a new procedure, known internally at the state agency as UCHIPS (Unborn CHIPS), specifically for detaining pregnant people.

The law permitted the detention, at any stage of pregnancy, of a pregnant person who “habitually lacks self-control” in the use of alcohol or drugs “exhibited to a severe degree” that poses a “substantial risk” that the infant will be “seriously affected or endangered” at birth. Neither law nor science provides a clear definition for any of these terms, which has led to women who have stopped all use of drugs being locked up for months. Worse yet, the law did not confer a right to counsel in key hearings.

Loertscher’s suit alleged that the law violated a number of constitutional rights, including rights to medical decision-making, reproductive privacy, due process, and equal protection. Last fall, represented by National Advocates for Pregnant Women, the Reproductive Justice Clinic at NYU School of Law, and the Perkins Coie law firm, Loertscher filed a motion for summary judgment, seeking a ruling on the law’s constitutionality before trial. Friday’s ruling granted that motion, declaring the law unconstitutionally vague.

Specifically, the judge ruled that the law violated the right to due process. The U.S. Constitution’s guarantee of due process requires that the law clearly define what is prohibited. To be valid, a law must give a person of ordinary intelligence notice of what is required and provide meaningful standards to law enforcement in order to avoid arbitrary enforcement. The court focused its analysis on two central concepts at the heart of the law: “habitual lack of self-control” and “substantial risk to the physical health of the unborn child.”

In a true win for science in an age of “alternative facts,” the court acknowledged the lack of medical accord as to how or whether substances affect infant outcomes. It seized upon the state’s expert’s admission that they had testified to matters beyond their expertise, and pointed out that neither the defendants nor the experts could provide a clear definition of “habitual.” Lawyers representing the state attempted to use a dictionary definition, a tactic chided by the court as a “festival of circularity.” The court concluded that with such amorphous standards, “[e]rratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured.”

So what comes next? The court’s injunction applies statewide, preventing the state from using the law against pregnant people. Thus far, the state has been quiet as to whether it plans to appeal the ruling. But in practical terms, there are two critical, intertwined results of this law.

The first is that healthcare providers will no longer be called upon to act as agents of law enforcement against their own patients. The law itself contained no requirement that physicians breach their patients’ confidentiality, but the litigation revealed pervasive confusion among medical personnel as to what was required and what would happen to patients once reported. Dr. Kathy Hartke, chair of the Wisconsin Section of the American Congress of Obstetricians and Gynecologists (ACOG), was one physician catalyzed to speak out against the law based on her own patients’ Kafkaesque experiences after Act 292’s enactment. She recently described the medically nonsensical law to Wisconsin Public Radio: “We don’t lock [pregnant] women up if they’re diabetic and they’re not following their treatment plan or if someone is smoking a pack a day, which causes more fetal deaths than some of these other drugs that could be used.”

Second, and most importantly, pregnant people will know that they can seek medical care without fear of being subjected to interrogations, investigations, and involuntary detention. Even though the State of Wisconsin claimed that it had an interest in protecting fetuses that justified detaining pregnant people, medical groups like ACOG and the American Medical Association disagree, warning instead that threats drive people away from care.

Loertscher, meanwhile, is barredby precedents whittling away people’s right to compensation for civil rights claimsfrom recovering money damages for the trauma she suffered. But she may still be vindicated in another forum. In October, assisted by the Human Rights and Gender Justice Clinic at the CUNY School of Law, she recounted her experience to the United Nations Working Group on Arbitrary Detention, a group of international experts appointed to investigate and report on human rights concerns. Moved by Loertscher’s story, the group condemned Wisconsin’s law in a statement that presaged the federal court’s ruling. It denounced the law’s lack of due process, standards for enforcement, or representation for the pregnant person. Calling the law “obviously gendered and discriminatory in its reach and application,” the working group recommended that it be “replaced with alternative measures that protect women without jeopardizing their liberty.” The group will submit its full public report on the visit to the United States this September. This report is likely to include information about several other states with similar laws not affected by this injunction, laying the groundwork for advocates to call for change beyond Wisconsin.

And beyond its substantive content, the ruling closes a painful chapter: Litigation often requires plaintiffs to continually relive their trauma for years. Loertscher, who has a health-care background, aspires to create safe, healing spaces for pregnant people going through what she experienced. Friday’s outcome marks a first step toward that vision for pregnant people across Wisconsin.

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