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August 8, 2017

Leading Medical and International Human Rights Groups File Amicus Briefs Opposing Wisconsin Act 292

The Wisconsin Medical Association, American Medical Association and other leading medical groups, as well as Amnesty International and other international human rights groups, and the National Coalition for a Civil Right to Counsel are all supporting National Advocates for Pregnant Women’s (NAPW) litigation opposing Wisconsin Act 292, a law that permits detention, incarceration, and forced medical interventions on pregnant women.

Wisconsin Governor Scott Walker and Attorney General Brad Schimel have been vigorously defending the state’s “Unborn Child Protection Law” that a federal court struck down as unconstitutional and is currently still being enforced. The Governor and Attorney General are taking this stand against a broad coalition of medical and human rights groups that have concluded that this law is a dangerous failure.

Wisconsin Act 292, permitting the state to use any evidence of a pregnant woman’s past or current use of alcohol or a controlled substance as a basis for denying her the rights to physical liberty, medical decision making, and bodily integrity (among others), was held unconstitutionally vague earlier this year by a federal district court. This ruling was based on extensive evidence, including the opinions of renowned medical experts who testified about the scientific consensus that voluntary, confidential health care is the most effective way to promote healthy mothers and babies. Nevertheless, the Wisconsin Attorney General appealed to the U.S. Court of Appeals for the Seventh Circuit in an effort to have the lower federal court’s decision overturned and to be able to continue using this harmful law to impose state control over pregnant women who have voluntarily sought help. The appeals court will consider the case in the fall.

Opposition to this failed and dangerous law was expressed to the Court of Appeals through three “friends of the court” (amicus) briefs:

1) Medical organizations explaining that medical science does not support Act 292’s coercive approach and that the Act hurts mothers and babies.

Amicus Brief Filed by: Wisconsin Medical Society (Society), American Medical Association (AMA), American College of Obstetricians and Gynecologists (ACOG), American Academy of Addiction Psychiatry (AAAP), American Academy of Pediatrics (AAP), American Medical Women’s Association (AMWA), American Nurses Association (ANA), American Public Health Association (APHA), American Society of Addiction Medicine (ASAM), and Wisconsin Society of Addiction Medicine (WISAM)

2) Amnesty International and other human rights groups explaining that Wisconsin’s law violates human rights.

Amicus Brief Filed by: Amnesty International, Human Rights and Gender Justice Clinic at The City University Of New York Law School, and Center For Reproductive Rights

3) The National Coalition for a Civil Right to Counsel explaining that Act 292 fails to give pregnant women the right to a lawyer at critical stages of the proceedings against her when she is faced with being forced into treatment or even jailed, although the Act appoints a lawyer for the fertilized egg, embryo or fetus from the very beginning of the case.

Amicus Brief Filed by: National Coalition for a Civil Right to Counsel 

Background: Wisconsin Act 292 gives juvenile courts jurisdiction over an “unborn child” (defined as from “the time of fertilization to the time of birth”) and a pregnant woman when a pregnant woman is suspected of using alcohol or controlled substances or of having used in the past if it is claimed that such use poses a severe risk of serious harm to the fetus. Without a right to a lawyer to defend her (although the Act appoints a lawyer for the fetus immediately), a pregnant woman has no way to challenge the medical claims being made against her (no matter how mistaken, inaccurate, or false) and she can be locked up and subjected to forced treatments that are medically unnecessary, inappropriate and even dangerous –- for the duration of her pregnancy. If she does not cooperate can be sent to jail. Nothing in the Act requires that the woman receive or even have access to prenatal care. The federal district court properly found that the Act provides so little guidance to people subject to the law and so few limits on those charged with enforcing it that the law is unconstitutionally vague. The Act takes away pregnant women’s rights to physical liberty, medical privacy, bodily integrity, and self-determination.

The State of Wisconsin’s own public health and children and family services agencies opposed the law when it was passed. These agencies said that the Act’s coercive approach was “destructive, and that readily available drug and alcohol treatment … would be preferable to threatening mothers with incarceration and loss of parental rights.” Medical providers also opposed the law because they were concerned that the Act would deter women from seeking prenatal and other medical care and thus “negatively affect the health of mothers and children.” Even so, the law was passed by those who “insisted there had to be a category of child abuse called “unborn child abuse” that could be “enforced somehow” against pregnant women. The amicus briefs filed in court last week show the overwhelming and powerful sentiment by the medical and civil and human rights community that this law is indeed harmful and should be off the books.