News Law and Policy

Federal Appeals Court Dismisses Challenge to Wisconsin’s ‘Personhood’ Law

Jessica Mason Pieklo

A panel of federal judges on Monday dismissed a case challenging a Wisconsin law that allows for the involuntarily detention and treatment of pregnant people, while the fetus gets legal representation.

A three-judge panel of the Seventh Circuit Court of Appeals on Monday vacated a lower court decision striking Wisconsin’s “cocaine mom” law, also known as a “personhood” law, ruling the case was now moot because the woman challenging the law had moved out of state.

Wisconsin lawmakers in 1997 passed the Unborn Child Protection Act (Act 292), which empowers the state to involuntarily detain pregnant people at any stage of their 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 fetus 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. 

So-called personhood laws, backed by anti-choice radicals and recently embraced by congressional Republicans, try to classify fertilized eggs, zygotes, embryos, and fetuses as “persons,” granting them legal protection under the U.S. Constitution. 

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In 2014, Tamara Loertscher voluntarily sought medical help for depression and a severe thyroid condition that resulted in Loertscher experiencing debilitating lethargy. Loertscher had begun to self-medicate with marijuana and methamphetamine as this condition took hold. When she suspected she was pregnant, Loertscher disclosed this information to health-care workers who first confirmed Loertscher’s pregnancy then immediately reported her to social service authorities, who initiated legal proceedings against her. 

While Loertscher was detained at the hospital, the court held an emergency hearing to determine if she posed a substantial risk to her fetus under the statute. At this hearing the court appointed a guardian for Loertscher’s fetus but denied Loertscher counsel. The court found Loertscher met the criteria for involuntary detention and medical treatment during her pregnancy and ordered Loertsher be transferred to and held at the Taylor County Jail.

Loertscher challenged her detention. In April last year a federal district court struck the law as unconstitutional. The district court concluded that Act 292 “affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement.” The district court concluded, “erratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured.”  

Attorneys for Wisconsin appealed to the U.S. Court of Appeals for the Seventh Circuit and asked the U.S. Supreme Court for a stay of the April order while the appeal proceeded. In July 2017, the Supreme Court granted that request and allowed prosecutors to return to enforcing the law while the appeal continued.

On Monday, a panel of judges from the Seventh Circuit ruled that because Loertscher had moved out of state the law no longer posed a risk to her. The ruling avoids dealing with the constitutional challenges raised to the so-called personhood statute. 

Monday’s decision “demonstrates that it is extremely difficult for a woman to get justice in the federal courts when a law deprives her of her constitutional rights because she is pregnant,” Nancy Rosenbloom, director of legal advocacy at National Advocates for Pregnant Women, said in a statement. 

“In vacating on supposed mootness, the Seventh Circuit opinion suggests that Act 292 is both clear and benign. It is neither,” said Rosenbloom. 

“For example it omits the facts that Ms. Loertscher was not diagnosed with a substance-use disorder and that she did not use any substances after confirming that she was pregnant. The opinion ignores that the doctor whose testimony was used to order unnecessary forced treatment admitted she was not an expert on the effects of drugs and had no idea her testimony would be used as a basis for jailing a pregnant woman.” 

This is the second time a federal court has relied on “mootness” grounds to prevent a Wisconsin woman from challenging Act 292. In the first case, a federal court held that because Alicia Beltran was no longer being forced to submit to treatment, she did not have standing to challenge the law.

Two other states, South Dakota and Minnesota, have laws allowing for the civil commitment of pregnant people who use drugs. But only the Wisconsin law puts pregnant people under the jurisdiction of juvenile court, where the fetus is appointed a guardian ad litem and the pregnant person is not guaranteed counsel. 

National Advocates for Pregnant Women, the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm in Madison, Wisconsin, represent Loertscher who has the option to appeal Monday’s decision to the entire panel of judges on the Seventh Circuit Court of Appeals.

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