'Cocaine Mom' Law Dealt a Legal Blow in Wisconsin

by | May 2, 2017

By Bruce Vielmetti

A federal judge in Madison has declared Wisconsin's so-called cocaine mom statute -- meant to provide protection for developing fetuses -- unconstitutional in a civil rights lawsuit by a woman who was jailed 18 days while pregnant for refusing to live at a treatment center.

"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," said Kathy Hartke, Wisconsin chair of the American Congress of Obstetricians and Gynecologists.

"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."

A spokesman for Wisconsin Attorney General Brad Schimel said the office was still reviewing the decision and had no immediate comment.

Tamara Loertscher, 32,  sued shortly before she gave birth in January 2015. The prior summer she had gone to Taylor County social services when she thought she might be pregnant. A urine test at Eau Claire Mayo Clinic confirmed the pregnancy and revealed Loertscher's past use of methamphetamines.  Social services staff then went to court and had a guardian appointed for the 14-week-old fetus.

When Loertscher refused to voluntarily go to a residential addiction center, Taylor County officials and the guardian ad litem got a judge to have her found in contempt, and she was jailed until a public defender was appointed for her and won her release.

Late Friday, U.S. District Judge James Peterson granted summary judgment in Loertscher's favor, finding the statute Taylor County officials were following unconstitutionally vague.

"At the heart of the act are two concepts: 'habitual lack of self-control' and 'substantial risk to the physical health of the unborn child,' " Peterson wrote. He found both concepts "essential components of the jurisdictional and substantive standards" of the law but that neither is "amenable to reasonably precise interpretation."

The 1998 law lets adult pregnant women suspected of current or past drug or alcohol use that could affect their fetus be held in secure custody and subjected to involuntary medical treatment. Social workers can initiate confidential legal action in children's court; lawyers get appointed for a woman's fetus.

Peterson's decision prevents the state from enforcing the law, but it also granted summary judgment to the Taylor County workers who had also been named as defendants in the lawsuit. Peterson found they were essentially following the law as written, were immune from liability and therefore Loertscher was not entitled to any monetary damages.

Lynn Paltrow, president of National Advocates for Pregnant Women, which assisted Loertscher, said, "The decision makes clear that the constitutional protections afforded by the well-established principles of notice and fairness apply equally to pregnant people."

The American College of Obstetricians and Gynecologists, American Society of Addiction Medicine and American Public Health Association filed a brief opposing the law.

Peterson's decision should really come as no surprise.  He noted the Legislature passed the law even though the Legislative Council warned of its "highly doubtful" constitutionality and the fact that the Department of Children and Families, the Division of Public Health's substance abuse bureau, the City of Milwaukee Health Department and leaders in the Wisconsin medical community all opposed it.

The Legislature proposed the law after the state Supreme Court had specifically ruled that a juvenile court did not have jurisdiction over an adult pregnant woman under a child in need of protective services (CHIPS) petition.

(c)2017 the Milwaukee Journal Sentinel