Unborn Child law

The U.S. Supreme Court has allowed Wisconsin to continue to enforce the Unborn Child Protection Act, which allows the government jurisdiction over a pregnant woman who “habitually lacks self-control” in the use of alcohol and drugs “to a severe degree.”

The high court’s order was issued in Anderson v. Loertscher. Justices Ruth Bader Ginsberg and Sonia Sotomayor dissented.

The order earlier this summer followed a decision in April by a U.S. District judge in Madison who determined the Unborn Child Protection Act is unconstitutionally vague and issued an injunction to block its enforcement.

The Supreme Court’s order is the latest development in a case expected to take at least another year — but possibly two years — to reach a conclusion.

The Unborn Child Protection Act, passed in 1997, authorizes state and local authorities to initiate legal proceedings against a pregnant woman alleged to “habitually” lack self-control in the use of alcohol or controlled substances. It also considers a fetus of any gestational age as a child in need of protective services. The law authorizes the government to detain pregnant women to control their private medical decisions.

U.S. District Judge James Peterson said two concepts — “habitual lack of self-control” and “substantial risk to the physical health of the unborn child” — are at the heart of the act.

“Neither of these concepts is amenable to reasonably precise interpretation,” Peterson ruled. “Thus, the act affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement.”

The case now is before the U.S. Court of Appeals for the 7th Circuit, which rejected the state’s motion to lift Peterson’s injunction while it considers the constitutional questions.

So Wisconsin Attorney General Brad Schimel asked the Supreme Court to lift the injunction.

In a statement, he called the Supreme Court’s order “a victory for the rule of law,” restoring “important tools that make mothers and children safer and stronger.”

Schimel said “numerous law enforcement officers and human services providers” told him “they no longer have the ability to get drug-addicted women help, work they’ve been doing for nearly two decades.”

Jailed for pregnancy

The dispute stems from a lawsuit brought by Tamara M. Loertscher, who was detained in a hospital and then held in jail for contempt for 17 days — until she signed a consent decree in which she agreed to submit to drug testing and treatment by Taylor County officials.

Starting in February 2014, Loertscher was unemployed and no longer able to pay for health care or the medicine she took for hypothyroidism, according to court papers.

Without treatment, she began to experience severe depression and fatigue, as well as head and neck pain. During this time, she began using methamphetamine two or three times per week. Also, over the course of a year, she used marijuana.

In July 2014, Loertscher went to the Eau Claire Mayo Clinic Hospital emergency room to seek medical care for her thyroid condition and depression, to confirm her pregnancy and subsequently to receive prenatal care.

Clinic personnel performed a drug screen of Loertscher’s urine without her consent. The test results returned “unconfirmed positive” for methamphetamine and tetrahydrocannabinol, the active component of marijuana.

Clinic personnel then disclosed Loertscher’s medical information to the Taylor County Department of Human Services and the county instituted juvenile court “unborn child abuse” proceedings against her.

Loertscher, who gave birth to a boy in 2015, sued the state, claiming the Unborn Child Protection Act is vague and violates her due process, equal protection, and First and Fourth Amendment rights.

Loertscher’s allies in court have included the American College of Obstetricians and Gynecologists, the American Public Health Association, and the American Society of Addiction Medicine, all which argue that Wisconsin’s law deters women who use drugs from accessing prenatal care.

In a brief filed in the case, the organizations say the state control exercised over Loertscher lacks any legal, medical or scientific foundation.

“Punishing women for continuing their pregnancies to term, having used alcohol or a controlled substance, has the perverse effect of encouraging women to terminate pregnancies or to shun or delay prenatal care in order to avoid significant loss of liberties, including incarceration, coerced treatment and suspension or loss of parental rights,” the brief states.

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