The Supreme Court on Friday ruled the state of Wisconsin could return to enforcing its “fetal protection” law that a federal district court had blocked as unconstitutional while a case challenging to the law is appealed.
Wisconsin’s 1997 Act 292, also known as the “Cocaine Mom Law,” empowered the state to involuntarily detain pregnant people, at any stage of pregnancy, if that person “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.
Under the law, social workers can begin confidential legal proceedings in which a court can appoint a guardian ad litem to represent the fetus in the legal proceedings against the pregnant person. If that person is found to be a substantial threat to the fetus, the state can involuntarily detain them and subject them to involuntary medical treatment.
That is what happened in Tamara Loertscher’s case.
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Loertscher in 2014 voluntarily sought medical help for depression and a severe thyroid condition that resulted in Loertscher experiencing debilitating lethargy, which she had self-medicated with using marijuana and methamphetamine, according to Loertscher and her attorneys. Loertsher, who suspected she may be pregnant, disclosed this information during her appointment. Hospital staff then confirmed Loertscher was 14 weeks pregnant and immediately reported Loertscher to social service authorities, who then began legal proceedings against Loertscher.
While at the hospital, the court held an emergency hearing to determine if Loertscher posed a substantial risk to her fetus under the statute. The court found Loertscher met the criteria for involuntary detention and medical treatment during her pregnancy.
The court appointed a guardian for Loertscher’s fetus. Loertscher was denied counsel for this hearing. The court ordered Loertsher to the Taylor County Jail, where she was held for 18 days—including for some time in solitary confinement—and threatened with being shocked by a Taser stun gun, according to Loertscher’s attorneys.
Loertscher eventually challenged her detention and in April a federal district court struck the law as unconstitutional. Attorneys for Wisconsin appealed to the U.S. Court of Appeals for the Seventh Circuit and asked the Supreme Court for a stay of the April order while the appeal proceeded. Friday’s order allows prosecutors to return to enforcing the law. The Court gave no reasoning for its decision other than to note that Justices Sonia Sotomayor and Ruth Bader Ginsburg would have denied the request for a stay.