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.