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October 26, 2015

Victories, Patel Update, TN Wrap-up, and Global Connections

NAPW challenge to Wisconsin law will go to federal court

On Sept. 30, a federal district court judge issued a ruling that allows NAPW to go forward with a constitutional challenge to Wisconsin's so-called "cocaine mom law." Passed in 1997, this law allows the state to detain pregnant women, at any stage of pregnancy, if they use or admit to past use of alcohol or drugs. The law was used to lock up Tamara ("Tammy") Loertscher, the plaintiff in this lawsuit. Loertscher is represented by National Advocates for Pregnant Women (NAPW), the Reproductive Justice Clinic at NYU Law School, and Perkins Coie law firm in Madison.

In this case, Wisconsin tried to get the federal court to dismiss the case and to keep secret the court proceedings against Loerstcher. The federal court refused all of the state's efforts to block challenges of this law, which has resulted in the surveillance and investigation of more than 3,000 women in the state. For a summary of the Loertscher case, see "Jailed for using drugs while pregnant," which appeared in The Atlantic earlier this month.

Arkansas woman to be released after high court ruling

On Oct. 8, the Arkansas Supreme Court reversed the conviction of Melissa McCann Arms, who was sentenced to 20 years imprisonment for "introducing a controlled substance into the body of another person" when she gave birth in 2013 to a baby who tested positive for a controlled substance. In its ruling, the Arkansas Supreme Court concluded that the intent of Arkansas' law was to prevent the drugging of another person through the use of "knockout drugs" and not to punish women who become pregnant and deliver despite having used a criminalized drug. Local and national media articles such as this Huffington Post piece have helped explain why such prosecutions have no grounding in medical and public health practices.

We have since learned that at least two other women are serving time as a result of wrongful convictions under this law. The Arkansas attorney general also plans to ask the legislature to expand the law to include pregnant women, and NAPW is keeping an eye on possible legislative developments.

We won't stop fighting until Purvi Patel is free

On Oct. 2, NAPW filed our amicus brief in support of Purvi Patel's appeal of her conviction for attempting to have an abortion and for the outcome of that pregnancy. This story, "Purvi Patel's legal team attacks evidence behind her controversial conviction for feticide, child neglect," quotes from our brief: "Allowing the judicial expansion of Indiana law to prosecute women in relation to their own pregnancies endangers public health and the civil rights of all people who are or may become pregnant." Director of Legal Advocacy Sara Ainsworth and Legal Fellow Lisa Sangoi are going to Indiana later this month to participate in state-based outreach to build opposition to her conviction and 20-year sentence.

200 attend convenings about Tennessee law, punitive policies

In 2014, Tennessee enacted a law that permits the arrest and punishment of pregnant women who use "illegal narcotics" and give birth to babies who are "addicted" or "harmed." Recognizing that such a policy is generally based on stigma, NAPW partnered with numerous allies including Healthy and Free Tennessee, the National Perinatal Association, and SisterReach to sponsor a conference and symposium that brought together experts and thought leaders from diverse sectors, including medicine, ethics and law. About 200 people attended, including several Tennessee legislators. Many participants took time to stop at our photo booth, where they shared their thoughts about policies that hurt families while claiming to protect them. As a result of the Tennessee meetings, numerous media reports explained why some women are afraid to give birth at hospitals, questioned neonatal care that separates drug-using mothers from their babies and explored personhood laws that "can land women in court for crimes against their own fetuses."

Given all this -- it should not be surprising that NAPW was recently featured in a story titled "5 Groups Doing Great Work On Reproductive Rights You Haven't Heard Of -- Yet." We are honored to be in such good company.

Networking for better global policy

NAPW Executive Director Lynn Paltrow was a keynote speaker at the 24th annual International Harm Reduction Conference in Kuala Lumpur, Malaysia. She is pictured here with leaders from the Asian-Pacific Research and Resource Centre for Women and the Reproductive Rights Advocacy Alliance Malaysia.

Support our work

These victories and media coverage are the result of NAPW's determined work and legal expertise. But we need your support to undertake costly litigation and public education work to ensure that no woman has to fear incarceration because she is pregnant, has used drugs or had an adverse pregnancy outcome.

October 8, 2015

NAPW marks 2 legal victories in states that have incarcerated women based on pregnancy and drug-use claims; Appeal will free Arkansas woman, Wisconsin case moves forward

NEW YORK - On Oct. 8, the Arkansas Supreme Court reversed the conviction of Melissa McCann Arms, who was sentenced to 20 years imprisonment for introducing a controlled substance into the body of another person when she gave birth in 2013. The Arms v. State of Arkansas victory comes a week after a federal district court ruling that allowed a constitutional challenge to the 1997 Wisconsin "cocaine mom" law to go forward. Together, the cases represent two important and positive rulings that uphold the rights and health of pregnant women.

In its ruling, the Arkansas Supreme Court concluded that the intent of Arkansas' law was to prevent the drugging of another person through the use of "knock-out drugs" and not to punish women who become pregnant and deliver despite drug use.

NAPW Senior Staff Attorney Farah Diaz-Tello, who argued the case before the court, said: "This law was used in a way that was never intended by the Arkansas legislature. We are not only glad to see this acknowledged by the highest court of Arkansas, but glad that other women like Ms. Arms will not have to go through arrest, interrogation, and separation from their newborn for giving birth and testing positive for a controlled substance. We hope Ms. Arms will be released from prison immediately, quickly reunited with her child and have this conviction expunged from her record."

On Sept. 30, a federal district court judge denied Wisconsin's request to dismiss a civil-rights lawsuit challenging a state law used to illegally jail and detain pregnant women. The law, commonly called "the cocaine mom law" when it was passed, allows the state to detain pregnant women, at any stage of pregnancy, if they use or admit to past use of alcohol or drugs. Tamara ("Tammy") Loertscher, the plaintiff in the lawsuit, is represented by National Advocates for Pregnant Women (NAPW), the Reproductive Justice Clinic at NYU Law School, and Perkins Coie law firm in Madison.

Ms. Loertscher's ordeal began in 2014 when she sought medical help early in her pregnancy and tested positive for methamphetamine and marijuana. Ms. Loertscher told her doctor that she had briefly used these substances to self-medicate for serious thyroid problems before she knew she was pregnant. Rather than providing confidential medical help, the hospital reported her to state authorities and turned over her medical records. Using the 1997 law, an attorney was appointed for her 14-week fetus, and a hearing was held without Ms. Loertscher. When she refused the unnecessary drug treatment mandated in the hearing, she was incarcerated for 18 days in a county jail without initial access to her thyroid medication; put in solitary confinement; and threatened with a Taser.

"This law deprives pregnant women in Wisconsin of nearly every constitutional right we hold dear," said Sara Ainsworth, director of legal advocacy at National Advocates for Pregnant Women and co-counsel on the case. "Liberty, privacy, medical decision-making, the right to counsel -- Wisconsin flagrantly violated Ms. Loertscher's rights and increased the risks to her health and that of her 14-week old fetus when they put her in jail."

The State of Wisconsin asked federal Judge James D. Peterson to dismiss Ms. Loertscher's lawsuit for procedural reasons, arguing in part that the case should be dropped because Ms. Loertscher is no longer pregnant. The court rejected these claims. The federal court system can now decide whether this state law is constitutional.

NAPW Executive Director Lynn Paltrow said: "There is a vital underlying message in both cases. The legal rules that prohibit prosecutors from making up new crimes, require them to prove their cases, and provide access to the federal court system all apply to pregnant women -- no less than other persons."

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