Pregnancy and associated issues have been a big source of controversy in the legal world over the last year. And the problem is far from dead, now that there are two pregnant women challenging a Wisconsin law that allows pregnant women to be thrown in jail over previous drug use–whether or not they’re still using.
The Case
The case started when Tamara Loertscher, who had no health insurance and had been self-medicating her depression and lethargy linked with her hyperthyroidism by using meth and marijuana, suspected she was pregnant. When she went to the hospital to confirm and seek help for her condition, the hospital staff allegedly focused primarily on her drug use and passed along her medical information to state authorities–without Loertscher’s knowledge or consent. She was then brought to court, where she twice refused a lawyer although her 14-week fetus was given one.
Although she had stopped using substances once she realized she was pregnant, the court issued an order to detain her and she was sent to jail for 17 days.
How’d they do that?
By using Wisconsin’s 1997 Act 292, which was famously dubbed the “cocaine mom law.” The law gives the state power over mothers who use or have used alcohol or a controlled substance. Though it was originally only geared towards mothers who were endangering their children, the law was amended to include unborn children, defining the life from the time of fertilization.
According to Freya K. Bowen, a Perkins Coie attorney who is representing Loertscher, the state law took existing legal framework designed to address child abuse and amended it to include unborn children.
“From our perspective this act is unconstitutional for a number of reasons, and there is no legitimate state interest being advanced [here],” said Bowen, who is working with the Carr Center for Reproductive Rights and the National Advocates for Pregnant Women (NAPW).
Sara Ainsworth, the director of legal advocacy at NAPW, echoes Bowen’s statements, adding that, sadly, there is no twisting in the application of the law towards Loertscher.
“This is exactly what the law was intended to do,” said Ainsworth. “[But] the law actually undermines maternal fetal health; every major medical and public health association in the US opposes punitive interventions against pregnant women, because they discourage women from seeking health care.”
And according to Bowen and Ainsworth there wasn’t any healthcare advantage to having Loertscher in jail. While she was held there, she was denied access to her thyroid medication and prenatal care. Once she began to experience cramping and other pain, she was initially denied access to a physician, and was placed into solitary confinement when she declined to take a pregnancy test. She was only released from custody when she agreed to get drug and alcohol testing (at her own expense) and that she would share the results with the state.
“What’s motivating our client here is that she wants to make sure no other women in the state have to go through what she went through under this law,” said Bowen. “And if we are successful in our statewide injunction no other pregnant women in Wisconsin will have to.”
Where does this happen?
This is the same law that was used to just last year to defend another Wisconsin woman who refused to take an anti-addiction drug after she had kicked her pill addiction. But Bowen says it’s hard to say exactly how many women have undergone treatment like this, because in Wisconsin it takes place in juvenile court.
“This law provides that the juvenile court has jurisdiction over the expectant mother, so all of these trials take place in a juvenile proceeding, not a public court proceeding,” said Bowen. “So it’s very difficult for the public to know just how often these cases happen.”
Wisconsin isn’t the only place with a law like this, however. Ainsworth cites a study completed by the NAPW that documented over 400 arrests or forced interventions against pregnant women between 1973 and 2005, and since Alabama applied its criminal child endangerment statute to pregnant women a little over a year ago the NAPW has documented over 100 arrests of pregnant women in that state.
“These prosecutions or interventions are often justified by a claimed interest in furthering maternal and fetal health, but…it is the exactly the opposite approach that health experts recommend to address substance use and addiction during pregnancy,” said Ainsworth. “Health experts decry the use of punitive measures, and instead urge laws that promote treatment and greater access to health care.”
Loertscher is due to give birth later this month, and Ainsworth says that if until they know the result of the complaint they filed, she will still be subject to “the continued surveillance and control of the state over her life, even after the baby is born” thanks to the court order brought against her in September.
“The law is not legitimate – it is facially unconstitutional,” says Ainsworth. “It violates women’s rights to privacy, medical decision-making, procreative decision-making, procedural due process, and equal protection of the laws and more. [And we hope] to ensure that no Wisconsin woman is ever again put through the kind of horrendous experienced that she suffered when she sought health care.”