As caring people who want to promote the birth of healthy babies, we should be very concerned that Wisconsin is still enforcing a punitive law that is quietly devastating the lives of many pregnant women and the children they love and want.
Twenty years ago, the Wisconsin Legislature passed Act 292, also referred to by some as the “Cocaine Mom” law, which gave the state tremendous power over pregnant women who use or have admitted to past use of any amount of alcohol or a controlled substance. The law permits the state to deprive pregnant women of basic rights and take action that is known to undermine maternal, fetal, and child health.
Under this law, pregnant women who are thought to use alcohol or drugs may be subjected to forced treatment without any proof that it is safe or even helpful for the pregnant woman or her future child. It gets worse. If the woman refuses the forced treatment, a court can then hold her in contempt and incarcerate her in a county jail, where she is likely to be denied access to pretty much everything recommended for pregnant women including healthy foods, and access to prenatal and other health care. The state can also begin proceedings to terminate her parental rights before she even gives birth. And while the state appoints a lawyer to represent fetuses at all stages of such proceedings, the woman has no right to counsel at important preliminary hearings where her rights are at stake.
Right now, a lawsuit in Wisconsin is challenging this law contends that it’s unconstitutional to allow authorities to detain and force treatment on pregnant women suspected of drug or alcohol use. The lawsuit is being brought by Tammy Loertscher, who did not have a substance use disorder and was detained and jailed in 2014 under the law.
Prior to becoming pregnant, Tammy, a certified nursing assistant, was dealing with depression and a thyroid problem. She was uninsured at the time and tried self-medicating with non-prescription drugs. When she suspected she was pregnant, she stopped self-medicating and went to Eau Claire’s Mayo Clinic Hospital for a pregnancy test and to get help for her depression and thyroid problem. Wanting to be honest with her health care providers, she let her health care team know that she had used these substances but had stopped when she suspected she was pregnant.
Under Act 292, Tammy’s confidential medical information including past substance use was reported to the county and law enforcement without her consent and the local county human services department filed a petition in juvenile court called an “unborn child in need of protection” petition. After an emergency telephone hearing that Tammy did not participate in because she didn’t have a lawyer, she was ordered detained in the hospital.
After the hospital discharged her as medically ready, the county brought her to court under the juvenile court petition and her 14-week fetus was given a lawyer while Tammy was refused a lawyer at two critical hearings. The court ordered Tammy into an inpatient drug treatment program even though she was no longer using drugs. When Tammy refused to be admitted into the program, she was incarcerated in the local jail for 18 days which included time in solitary confinement and while in the jail she did not have access to prenatal care or her thyroid medication. At one point, she began to experience cramping and other pain and was initially denied access to a physician. She was only released when she agreed to get drug and alcohol testing throughout her pregnancy (at her own expense) and that she would share the results with the county.
Unfortunately Tammy isn’t the only woman in Wisconsin whose rights and wellbeing have been harmed by this law. In 2013, Alicia Beltran was 14 weeks pregnant and taken in shackles before a judge after letting her health care team know she had had overcome a pill addiction the year prior to her pregnancy. Her reward for providing her health care professionals with her full health history: the state initiated Act 292 proceedings against her where she was denied a lawyer and eventually forced into a court-ordered, 78-day stay at a drug treatment center that did not even provide the kind of drug treatment that the county initially claimed she needed.
According to National Advocates for Pregnant Women whose lawyers are representing Ms. Loertscher, since 2006, Wisconsin government agencies “screened in” more than 3400 cases including an allegation of unborn child abuse, and between 2005 and 2014, Wisconsin county officials “substantiated” 467 “unborn child” cases under Act 292 against pregnant women. In at least 152 cases, authorities removed children from their parents after birth.
Wisconsin is one of a handful of states, including Minnesota and South Dakota, with specific laws allowing detention of pregnant women for suspected drug or alcohol use. But Wisconsin’s law is unique in allowing for the provision of attorneys for the fetus but not the pregnant woman being detained and for handling the cases against adult women not as civil commitment cases but in juvenile court where records are confidential.
Act 292 isn’t just an affront to the Constitution, it’s also is bad medicine. In 2011, the American College of Obstetricians and Gynecologists said that “incarceration and threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse” and that mandated testing and reporting lead women to avoid prenatal care that “greatly reduces the negative effects of substance abuse during pregnancy.” Actually, every major medical and public health association in the US opposes these kinds of punitive interventions against pregnant women because they discourage women from seeking health care and are not rooted in science and evidence-based medicine. This also includes the American Academy of Pediatrics, which focuses on the health and well-being of children.
Act 292 undermines maternal health care even further by denying the pregnant woman her right to confidential health care by allowing medical professionals to report the woman to law enforcement or child protective services.
With all the attention on the opioid epidemic in our state and across the country, this is the perfect moment in time to repeal this awful law and to invest instead in accessible, high-quality, confidential, voluntary, non-judgmental and evidence-based treatment that some pregnant women and babies need in our state.
Addiction is a chronic disease — just like depression, diabetes and hypertension — that should be treated, not punished. The societal goal for pregnant women who use alcohol or drugs, including opioids, should be a healthy outcome for both mother and baby.
When a pregnant woman is brought to court in handcuffs and shackled with no legal representation, it understandably causes her incredible amounts of stress. The stress is harmful to her health and her pregnancy. And to what end? For example, when one Wisconsin woman pregnant with twins went through acute opioid withdrawal in a county jail, her health was compromised in a manner that could have resulted in fetal demise. How is the health of the mother or the unborn baby prioritized when a woman is placed in a locked psychiatric ward with no prenatal care for weeks or another woman is threatened with a taser and put in solitary confinement? These aren’t hypotheticals – they are real examples of what has happened to pregnant Wisconsin women under this law.
Because of Act 292, we now have women in Wisconsin afraid to seek health care in fear of arrest, prosecution, or the loss of her parental rights. Noting that this law significantly undermines the doctor-patient relationship and trust necessary for optimal treatment outcomes, physician leaders in Wisconsin are hoping that the law will soon be found unconstitutional through the Tammy’s court case.
Despite the horrific treatment and abuse Tammy endured, she delivered a healthy baby boy who is now two years old and thriving. Tammy hopes this law will be nullified and no other women will have to endure the heart wrenching experience she did. It’s time to stand with Tammy and the other women who have been grievously impacted by this law and to speak out for its repeal.