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May 31, 2017

Amnesty International Publishes Criminalizing Pregnancy: Policing Pregnant Women Who Use Drugs in the USA

Report features National Advocates for Pregnant Women's work to secure the human and civil rights, health and welfare of pregnant and parenting women

Over the course of three years, Amnesty International analyzed US criminal prosecutions of women who are pregnant and alleged to use drugs. These cases are based on claims of promoting maternal and infant health, but in fact are about arresting and punishing women who are pregnant and use drugs. These "pregnancy criminalization" prosecutions violate women's human rights.

National Advocates for Pregnant Women (NAPW) is actively involved in ongoing court challenges to punitive reproductive health and drug policies and provides litigation support in cases across the country. NAPW assisted or served as co-counsel on many of the court cases highlighted in the report. Over a three year process, NAPW worked closely with Amnesty International to help inform and shape the report.

"Criminalizing Pregnancy: Policing Pregnant Women Who Use Drugs in the USA, is a clear overview of some of NAPW's key work," says Lynn M. Paltrow, Executive Director, NAPW. "As quoted in the report, these laws take away from a pregnant woman virtually every right associated with constitutional personhood, from the most basic right to physical liberty to the right to refuse bad medical advice." She continues: "NAPW appreciates this vital report concluding that the US is in violation of international legal obligations to respect, protect and fulfill the human rights of pregnant women. NAPW will continue to fight to secure the human and civil rights of all people who have the capacity to become pregnant."

This important Amnesty International report is consistent with NAPW's Women's Declaration calling for the end of punitive policies that violate the rights of women, children, and families. NAPW drafted the Declaration and coordinated more than 145 national and international organizations from every inhabited continent to sign on, in conjunction with the April 2016 United Nations General Assembly Special Session on drug policies.

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May 18, 2017

NAPW Fights to Preserve Court Victory Striking Down “Unborn Child Protection” Law

New York, May 18, 2017—Three weeks ago, the federal court struck down a Wisconsin law authorizing the detention, forced treatment, and incarceration of pregnant women as unconstitutional. The law allowed the state to seize control of women, detain them in jail or other locked facilities, and force them to submit to unconsented to and inappropriate treatment if they are pregnant and use – or even disclose past use of – any amount of alcohol or a controlled substance. As Dr. Kathy Hartke, an obstetrician-gynecologist who served as an expert in the case explained, this approach does not protect anyone, including babies.

The court’s ruling was based on extensive evidence, including the opinions of renowned medical experts who testified about the broad scientific consensus that voluntary, confidential health care is the most effective way to promote healthy mothers and babies. Hundreds of Wisconsin women have been reported and investigated under this law. Because of this ruling, Wisconsin women now have relief from the constant fear that voluntarily seeking prenatal care could result in being hauled into court, detained, forced to submit to inappropriate treatment or jailed.

Wisconsin’s Attorney General Schimel disagrees with the court’s decision and plans to pursue an appeal. Unfortunately, the A.G. issued a public statement today filled with inaccuracies, and political grandstanding rather than a responsible, medically supported approach to maternal and child health care. Schimel suggests that the state can only provide health care and other social services to pregnant women by force and coercion, but the state was unable to prove that in court. He also claims that the women who challenged the law do not understand the effects of “drug use by pregnant women.” The federal court’s ruling makes clear, based on medical evidence, that these statements are not so. The state already does and can continue to provide health care, drug treatment for those who need it, and other social services to people on a voluntary basis. The state also has a civil commitment law that can be used when there is a genuine need.

Respected medical groups including the American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists (ACOG) all have policies emphasizing that criminal sanctions and other punishment are not appropriate for pregnant women who use or have used alcohol or other substances; with such responses, pregnant women will be likely to avoid seeking prenatal or open medical care. For women who do have substance use disorders, ACOG states that “seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing.” (ACOG Committee on Health Care for Underserved Women, Committee Opinion 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist (2011, reaffirmed 2014)).

Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, one of the lawyers representing those who successfully challenged the law, said “This law was passed despite the objection of the Wisconsin medical community. Giving state authorities the power to lock up pregnant women in “treatment” that might not be needed or in county jails with no prenatal care might advance political careers but it certainly does not protect maternal or child health.”

National Advocates for Pregnant Women, the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm in Madison, Wisconsin represent plaintiff Tamara Loertscher, who sued the State of Wisconsin and Taylor County after government officials transformed her efforts to obtain medical care into the basis for forced, unnecessary treatment and then incarceration.

For information, please contact: Shawn Steiner, Media & Communications Manager – NAPW, 212. 255. 9252 ext. 33, (c) 917.497.3037 SCS@advocatesforpregnantwomen.org

National Advocates for Pregnant Women | Advocatesforpregnantwomen.org

 

May 1, 2017

Federal Court Declares Wisconsin “Unborn Child Protection” Law Unconstitutional: Law permitting forced treatment and detention of pregnant women is struck down, effective immediately

On Friday evening, April 28, 2017, a federal court in Wisconsin struck down a state law authorizing the detention, forced treatment, and incarceration of pregnant women as unconstitutional. National Advocates for Pregnant Women (NAPW), the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm in Madison, Wisconsin represent plaintiff Tamara Loertscher, who sued the State of Wisconsin and Taylor County after medical staff and state actors transformed her efforts to obtain medical care into the basis for forced, unnecessary treatment and then incarceration. The federal lawsuit challenges Wisconsin Act 292, the “Unborn Child Protection Act” that Lynn Paltrow, Executive Director of NAPW explained “strips pregnant women of nearly every civil right associated with constitutional personhood and endangers the health of pregnant women and babies.” The law allowed the state to seize control of women, detain them in jail or other locked facilities, and force them to submit to unconsented to and inappropriate treatment if they are pregnant and use – or even disclose past use of – any amount of alcohol or a controlled substance.

On April 28th, the court issued a decision declaring the law to be unconstitutionally vague, in violation of the constitutional right to due process. The American College of Obstetricians and Gynecologists (ACOG), American Society of Addiction Medicine, and American Public Health Association submitted a friend of the court (amicus) brief in support of striking down the law.

Dr. Kathy Hartke, chair of the Wisconsin ACOG commented, “This is a victory for the people of Wisconsin, public health, and for everyone who cares about the health of pregnant women and their babies.” She explained, “for the first time in 19 years, Wisconsin women who become pregnant and seek medical help can do so without fear that their confidentiality will be violated and their health and their baby’s health undermined by forced treatment and punishment based on medical misinformation and stigma.”

Popularly known as the “cocaine mom” law when it was passed in 1997, Act 292 gave local social services departments and juvenile courts jurisdiction over “an unborn child” (defined as “a human being from the time of fertilization to the time of birth”) and also over the “expectant mother” (a woman from the moment she becomes pregnant). Under the act, a pregnant woman could be subjected to forced treatment and detention if local government employees felt she:

“habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control.” Wis. Stat. § 48.133.

In reaching its decision, the Court explained that Act 292 was passed and enacted despite warnings by the Wisconsin Legislative Council that the constitutionality of the law was “highly doubtful,” and despite opposition to the law from Wisconsin’s own Department of Children and Families, the Division of Public Health’s substance abuse bureau, and the City of Milwaukee Health Department. The law, had also been overwhelmingly opposed by leaders in the Wisconsin medical community.

Lynn Paltrow, Executive Director of NAPW, explained “anti-abortion organizations used popular but scientifically disproven myths about pregnant women and cocaine use to lobby for a law that purported to protect ‘unborn children’ but in fact subverted maternal and child health and deprived adult women who became pregnant of fundamental constitutional rights including the right to decide to have an abortion.” Paltrow said, “the decision makes clear that the constitutional protections afforded by the well-established principles of notice and fairness apply equally to pregnant people.”

After careful examination, the Court concluded that the Act is vague in violation of the U.S. Constitution’s guarantee of due process of law, explaining it “affords neither fair warning as to the conduct it prohibits nor reasonably precise standard for its enforcement.” The court concluded that given the vagueness of the law, “erratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured.”

Ms. Loertscher’s own experience confirmed this conclusion. As a result of seeking health care and what the court described as “her commitment to having a healthy baby and to take care of herself” she became subject to forced treatment and incarceration pursuant to Act 292. As the Court explained “her history of modest drug and alcohol use, which she self-reported while seeking medical care” became the basis for Taylor County’s claim that she “habitually lacked self-control” and a court hearing to determine whether Ms. Loertscher could be deprived of her freedom.

Pursuant to Act 292 Ms. Loertscher had no right to have counsel present or appointed at that initial hearing, but a lawyer was immediately appointed to represent her 14-week fetus. Following the hearing at which she was not represented, she essentially had the choice between being forcibly detained indefinitely at a drug treatment facility that provided no prenatal care, or going to jail for 30 days where she would receive no prenatal care. In fact, Ms. Loertscher ended up incarcerated in a county jail for weeks, where she was denied prenatal care and as a result of refusing to take a pregnancy test, was for some of the time locked in a solitary confinement holding cell, isolated from human contact.

The Court concluded that “the conduct covered by the Act is fundamentally unclear,” characterizing the phrase “habitual lack of self-control” as “fundamentally ambiguous,” and rejecting the State’s attempt to explain the meaning of the term as a “festival of circularity.” The court also concluded that there was “virtually no concrete evidence to substantiate the purported risk to the child” and that expert evidence in the case made one thing “abundantly clear: current medical science cannot tell us what level of drug or alcohol use will pose a substantial risk of serious damage to an unborn child.”

The Court found Act 292 to be unconstitutionally vague and stopped enforcement of the law statewide.

Dr. Aleksandra Zgierska, a family medicine and addiction medicine physician in Madison, WI, who served as an expert in the case, said, “This decision comes at a time when we know several important things: that the outcome of any particular pregnancy has typically far more to do with the life circumstances women grow up in (such as poverty, poor nutrition or access to health care) than any particular thing she does or does not do during pregnancy; that use of criminalized drugs is less risky to the developing fetus than once thought; and that the best ways to protect babies and grow healthy children is to provide confidential, non-threatening health care that keeps mothers engaged in treatment, if they need it, and mothers and babies together.”

Nancy Rosenbloom, NAPW’s Director of Legal Advocacy explained “Although the Court did not specifically rule on other constitutional claims raised by our client, the Court acknowledged that the law implicates a number of fundamental constitutional rights.” The Court wrote, “contrary to the State’s contention, the Act plainly implicates constitutional rights, particularly the right to be free from physical restraint” as well as the rights to personal privacy, the right to be free from coerced medical treatment and bodily integrity.

The Court also ruled that while the state law is unconstitutional and enforcement of it must stop immediately, Ms. Loertscher would not be allowed to sue Taylor County for monetary damages. Professor Sarah Burns of the NYU Law School Reproductive Justice Clinic explained, "This part of the ruling is based on law that makes it difficult to hold municipalities liable for their practices, and as a result insulates the county from responsibility for the harm to women resulting from county actions, including stress, serious psychological harm and loss of trust in medical providers."

Ms. Loertscher, 29 at the time of the proceeding gave birth to a healthy baby who is now a thriving 2-year-old. Ms. Loertscher and her family felt driven out of Wisconsin as a result of the government’s actions, and now live in another state.

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