On Aug. 5, 2014, Tammy Loertscher stood in front of a Wisconsin judge, charged with “unborn child abuse” of her 14-week-old fetus. Loertscher was not given a court-appointed lawyer.
But her fetus was.
Loertscher, then 29 years old, said she hadn’t realized she was pregnant until she sought treatment for her depression at a local hospital in rural Taylor County. When she was informed of the pregnancy by medical staff, she told them that she had been occasionally self-medicating with methamphetamine.
That set off a nightmare chain of events leading to her weekslong incarceration in a county jail, where she was denied prenatal care and was for a brief time held in solitary confinement.
Wisconsin’s 1997 Unborn Child Protection Act, also known as the “cocaine mom law,” was meant to protect unborn children from mothers who “habitually lack self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs.” But over the past two decades, it subjected pregnant women of all ages to juvenile court proceedings in which they were not allowed access to a lawyer — even as the state appointed lawyers to represent their fetuses.
Many women prosecuted under the law were not made aware of the charges against them until they heard them from the judge in court.
On Wednesday, however, District Court Judge James Peterson all but ensured the law’s demise when he reaffirmed a ruling he made last month that struck down the law as unconstitutional (read his entire decision below). That original ruling was in a case brought by Loertscher against Wisconsin Attorney General Brad Schimel, Wisconsin Secretary of Children and Families Eloise Anderson, and Taylor County, alleging that the law violated a woman’s constitutional right to due process.
The attorney general’s office is now taking the case to the 7th Circuit Court of Appeals, while at the same time appealing the Federal District Court’s denial of their motion to keep the law on the books.
Civil rights groups have long argued that the law demonized pregnant women who had any history of drug or alcohol use, and in so doing endangered the health of both mothers and babies by deterring women from seeking prenatal care. Peterson agreed, concluding that due to the vagueness of the law’s language, “erratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured.”
In response to the judge’s Wednesday decision, Schimel said in a statement that he would fight to get the law reinstated, citing the “epidemic of drug abuse” facing the state.
“We hope this sends a message to those who think that passing stricter and stricter drug laws is going to stop people from using drugs.”
“This law allows the State to provide critical services to pregnant women, and contains important tools to protect unborn children in imminent danger,” Schimel said. “The law has served Wisconsin well for nearly 20 years, and it deserves to be vigorously defended beyond just the U.S. District Court in Madison.”
The attorney general’s office declined a request for further comment.
Loertscher’s legal team hailed the judge’s decision as a victory for all Wisconsin women.
“The legislature claimed the purpose of the law was to protect the health of unborn children and children once they’re born — but there was not a great deal said about the health of the woman,” said Nancy Rosenbloom, director of legal advocacy at National Advocates for Pregnant Women, the organization that represented Loertscher. “In reality what this law did was authorize the detention… and incarceration of women who were alleged to use drugs and alcohol.”
Loertscher was jailed for 18 days and released only after she agreed to take mandatory drug tests throughout her pregnancy. Shortly before she gave birth to a healthy baby boy in January 2015 — her attorneys say the state did not check on the welfare of the child or drug test Loertscher after his birth — she filed her case.
Before Loertscher’s suit, no one knew how many women were affected by the law due to the confidentiality of cases involving child protective services. But data gathered by the state and provided to VICE News by the NAPW now suggests that between 2006 and 2015, Wisconsin child protective agencies screened 3,467 cases of alleged “unborn child abuse.” During a similar period, agencies substantiated 467 unborn child abuse claims against pregnant women. In at least 152 of those cases, authorities took children away from their parents after birth.
“Not only was the law vague and misinterpreted, it acted as a deterrent for women to seek prenatal care and was dangerous to both maternal and fetal health,” Dr. Kathy Hartke, the chair of the Wisconsin section of the American Congress of Obstetricians and Gynecologists, said in a statement. She told VICE News that “what I’ve experienced is an abuse of treatment of these women. These are not dangerous criminals. The best way to treat the fetus is treatment with both mother and fetus in mind.”
Democratic state Rep. Chris Taylor said that while the strike-down of “one of the worst experimental policies ever enacted in Wisconsin” was welcome news, “this is not the end of this battle. Legislation that is detrimental to women’s health is commonplace in the Wisconsin legislature, and we need to be on red alert to laws such as this moving forward.”
The Wisconsin Assembly is currently considering a Republican-backed bill that would deny abortion coverage to all state employees.
Wisconsin isn’t the only state with laws that allow for the detention of expectant mothers suspected of mental health or substance use issues. Minnesota, Oklahoma, and South Dakota have similar statutes, but Rosenbloom says Wisconsin’s is the most extreme because it puts pregnant women under the auspices of juvenile courts and child protection laws that deny the women due process.
“This is not a criminal statute, but it has the same effect,” Rosenbloom said. “If you have a civil law that allows people to be arrested, incarcerated, and be forced into medical treatment that nobody else can be forced into… that feels a lot like a criminal punishment. We hope this sends a message to those who think that passing stricter and stricter drug laws is going to stop people from using drugs.”
The Unborn Child Protection Act was passed toward the end of the Clinton administration, which supported harsh federal drug laws, and at a time when a number of states were attempting to enact their own punishing drug regulations. Now, says Jolene Forman, staff attorney at Drug Policy Alliance, which filed an amicus brief on behalf of public health organizations supporting Loertscher, it appears we’re in danger of those kinds of punitive drug policies making a comeback.
“Both President Trump and Attorney General Sessions have demonstrated that they have not learned at all from our outmoded and failed policies of the war on drugs,” she said, “even though most of the public disagrees with them.”