Judge Shreds Wisconsin Law on Unborn Child Abuse

MADISON, Wis. (CN) – Siding with a woman who spent weeks in jail after she was accused of abusing her unborn child, a federal judge struck down a Wisconsin law that purports to address pregnant women with “habitual lack of self-control.”

Passed in 1997,  Act 292 allowed the state to treat fetuses as children in need of protection or state services if their mothers demonstrate problems with drug or alcohol abuse.

Finding the law unconstitutionally vague on April 27, U.S. District Judge James Peterson rejected Wisconsin’s claims that the statute is merely written in plain English, eschewing “technical words and phrases.”

“The state’s dictionary-definition approach is a festival of circularity, in which the statutory terms are simply replaced with synonyms that add no real meaning,” the 40-page opinion states.

Peterson noted that a Cincinnati ordinance against “annoying” passersby failed for the same reason back in 1971.

“Everybody knows what ‘annoying’ means — and its definition is in the dictionary — but that did not save the ordinance from vagueness,” the opinion states.

For the statute at hand, Peterson called out the self-control language as ambiguous.

“But where to draw the line?” Peterson asked. “The state contends that its experts and social workers in the field can draw the line. But their answers are just as circular and standardless as the dictionary definitions. Taylor County social worker [Julie] Clarkson could not offer a general definition of ‘severe,’ but methamphetamine was ‘reportedly very serious and severe,’ so apparently any use of that drug would be severe.”

Peterson also questioned how often an expectant mother would have to use drugs or alcohol to be considered a “habitual” user.

“The act could have phrased the first prong simply in terms of use, prohibiting some quantum of regular or extensive use of alcohol or controlled substances while pregnant,” he wrote. “But instead, the standard is directed to the expectant mother’s habitual lack of self-control when it comes to use. This introduces the possibility that the act could be enforced against any drug- or alcohol-dependent woman who was pregnant, because her history of substance abuse could be invoked to demonstrate the requisite lack of self-control, regardless of whether she actually used controlled substances while pregnant.” (Emphasis in original.)

Tamara Loertscher initiated the court challenge of Act 292 after she was hospitalized and then jailed for 18 days during her pregnancy in 2014. Before her release, state officials forced the 29-year-old to submit to regular drug monitoring and treatment in Taylor County.

Loertscher never tested positive for drugs after her release and she gave birth to a healthy baby boy in January 2015.

The ruling notes that Loertscher became pregnant while she was going through a period of depression and unemployment. Loertscher, who did not believe it was not possible for her to get pregnant because she suffered from hypothyroidism, had started using methamphetamine and marijuana several times a week in early 2014. She wanted to stop once she realized her condition.

Loertscher was 14 weeks along when she went to the hospital to seek thyroid medication and a pregnancy test. Taylor County appointed a guardian ad litem for Loertscher’s fetus at this time.

Though a county court commissioner ordered Loertscher transferred to an inpatient facility, a doctor at the Mayo Clinic Behavioral Health Unit authorized the woman’s discharge. The ruling quotes the doctor as telling a social worker “that he did not feel that Loertscher was ‘an imminent danger to herself or others and that just because she has used in [t]he past does not mean she will again.’”

Loertscher was staying with her grandparents when the county executed a warrant for her arrest. During her weeks behind bars after the circuit court found her in contempt, the jail withheld prenatal care and put Loertscher in solitary confinement because she refused to submit to a pregnancy test.

State officials failed to sway Judge Peterson with expert testimony from three doctors regarding the effects of alcohol and drugs on an unborn child.

“Here’s what’s important to this case: none of the three can say what level of drug or alcohol consumption poses a substantial risk of serious damage to the unborn child,” the ruling states (emphasis in original).

Peterson added that “the expert evidence here makes one thing abundantly clear: current medical science cannot tell us what level of drug or alcohol use will pose a substantial risk of serious damage to an unborn child.”

The judge did, however, rule against Loertscher’s Monell claim, named for the 1978 holding Monell v. Department of Social Services of New York

“Because Loertscher has not demonstrated that a county policy, practice, or custom came into play during her case, her Monell claim fails,” the ruling states.

Peterson noted that 3,326 reports of unborn child abuse were “screened-in” under the Act 292 between 2005 and 2014. Of these, just 467 were substantiated.

The court’s ruling prevents enforcement of the statute statewide.

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