Wisconsin’s Pregnancy-Abuse Law Challenged

     MADISON, Wis. (CN) – In the name of protecting her 14-week old fetus, Wisconsin locked up a woman who was concerned that recent drug use would affect her pregnancy, a federal complaint claims.
     Tamara Loertscher, a 30-year-old resident of Medford, filed the complaint Monday against Attorney General J.B. Van Hollen and Secretary Eloise Anderson of the state’s Department of Children and Families.
     The suit is a facial challenge to a Wisconsin law that gives courts jurisdiction over “unborn children” and their mothers when the mother “habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child.”
     Loertscher says she believed she might be pregnant in late July 2014 and stopped taking the narcotics she had been taking for the last few months in a depression spiral.
     The complaint notes Loertscher had lost her nurse’s assistant job in February, along with the health insurance she needed to treat her hypothyroidism, and began “self-medicating” with methamphetamine “to get out of bed in the morning.” Prior to her pregnancy realization, Loertscher also allegedly smoked marijuana “very intermittently.”
     When Loertscher sought help from the Taylor County Department of Human Services sent about her urgent need for medical care on Aug. 1, that office directed her to the emergency room at the Mayo Clinic in Eau Claire, according to the complaint.
     This attempt to get help spurred Wisconsin officials to initiate “adversarial court proceedings against Ms. Loertscher without affording her counsel or any procedural safeguards,” the complaint states.
     Loertscher says her urine sample showed that “she was indeed pregnant, and that there was an unconfirmed positive test result for drugs methamphetamine, amphetamine, and THC.”
     “Ms. Loertscher was at that point very worried, because she did not know how far along she was and what impact her previous drug use could have had on her pregnancy,” the complaint states.
     After an ultrasound revealed a healthy pregnancy of 14 weeks, Loertscher was admitted to the Behavioral Health Unit at the hospital, the complaint states.
     She says clinic personnel thereafter shared her medical information with the county without her permission. The county allegedly then appointed a guardian ad litem for Loertscher’s fetus, while Loertscher herself remained unrepresented.
     When Loertscher refused to participate in telephonic court hearings without an attorney, and declined a TB blood test required for admission to a residential rehabilitation facility, a judge found her in contempt of court on Sept. 4 and sent her to jail for 18 days as a result, the complaint states.
     While Loertscher was in jail, staff withheld her thyroid medication and refused to allow her to attend her prenatal appointments, the complaint states. When she saw the “jail doctor” for cramping and discharge that led to concerns about her pregnancy, she was told, “Well, if your body decides to abort, there’s nothing we can do about it.”
     Loertscher says the jail put her in a filthy solitary cell for 36 hours after she refused to submit to a urine test to confirm her pregnancy.
     The contempt charges were allegedly purged after Loertscher signed a consent decree ordering her to take part in treatment and comply with drug-testing requirements.
     She says in undergoing separate proceedings to challenge a subsequent finding by the state that her reporting some past drug use amounted to mistreatment of a fetus.
     Loertscher seeks declaratory and injunctive relief for violations of the First and Fourth Amendments.
     “Almost from the first, her intention to seek health care was turned against her for law enforcement purposes,” the complaint states. As a result, she was deprived of liberty and numerous, well-established constitutional rights.
     The Wisconsin Justice Department declined to comment on the complaint.
     Loertscher is represented by Freya Bown with Perkins Coie and attorneys with the National Association for Pregnant Women and Carr Center for Reproductive Justice.

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