When Tammy Loertscher entered the Mayo Clinic in Eau Claire in 2014, she was looking for help with a thyroid issue. She told her doctor that she had been self-medicating with marijuana and methamphetamine. While at the clinic, she took a pregnancy test and found that she was 14 weeks pregnant.
After she refused to enter a drug treatment program, Loertscher was arrested and held in the county jail for 18 days. The reason? Wisconsin’s Act 292, also known as the “Unborn Child Protection Act” or the “Cocaine Mom law.” The law, which has been on the books since 1998, allows a court to detain a pregnant person on the suspicion of drug or alcohol use.
Afsha Malik is with the National Advocates for Pregnant Women, which has been working to undo the law for some time.
“Essentially it permits juvenile courts to take custody of an unborn child, and thereby physically detain a pregnant person, under suspicion that someone is pregnant and either has consumed or may have consumed alcohol or a controlled substance during their pregnancy,” Malik says.
Loertscher ended up challenging the law, and in 2017, a federal trial judge declared it unconstitutional and suspended its enforcement, saying it was “overly broad.”
But that ruling was vacated a year later on appeal to the US 7th Circuit Court of Appeals. That court found that the case was moot after Loertscher moved out of Wisconsin.
So today, that law is still on the books, and it’s still being enforced. Each year for the past five years, more than 400 women have been detained or put on house arrest out of suspicion that they’re consuming drugs or alcohol. That’s according to statistics from the Wisconsin Department of Children and Families.
And around 1,200 people are investigated each year under the law, and while the fetus is guaranteed a lawyer, the person pregnant is not, often being left without legal representation
“Basically, there is a low bar for confinement. To initially hold an expectant mother in custody, they only need probable cause that there was a substantial risk to the fetus’ health. That really brings in more mothers into the system,” Malik says.
Rachael Lowe voluntarily went to a hospital in Waukesha in 2005 to seek help for opiate addiction. When it was found that she was pregnant, hospital staff alerted the police, who held her for around 12 days without counsel. When a doctor eventually testified that she did not significantly risk the health of the fetus, she was released.
Last week’s Supreme Court ruling, which overturned Roe v Wade, meant that Wisconsin reverted back to the previous law on the books. That law is an 1849 ban on all abortions, except if the life of the mother is threatened.
Malik says that there is a link between Wisconsin’s harsh abortion ban, and Act 292.
“What we have seen in our work is that, typically, states that have the most restricted access to abortion, are also where there is a higher criminalization for pregnancy. So a little different from 292, but what we know is that, in those instances, there is going to be a more punitive response and punitive action to pregnant people in general. That can be criminalizing them through the criminal system for behavior that they may be doing while they are pregnant, or for their pregnancy outcome,” Malik says.
Wisconsin is one of four states that have laws that allow county officials to detain pregnant people suspected of using illicit drugs. The other three are North and South Dakota, and Minnesota.
Meanwhile, other states have experimented with criminalizing substance abuse during pregnancy. A former Tennessee law made it a crime to use drugs while pregnant. That “fetal assault law” was discontinued after two years, after legislators acknowledged that impacted people were scared away from seeking prenatal care. Meanwhile, a similar bill advanced in the Wyoming legislature earlier this year.
Photo courtesy: Tingey Injury Law Firm / UNSPLASH