By Lorraine Bailey/Courthouse News
CHICAGO (CN) – The Seventh Circuit emphasized its concern Thursday for the protection of unborn children from “uncooperative mothers” in a case challenging the constitutionality of a Wisconsin law that allows the arrest of pregnant women suspected of drug or alcohol abuse.
“Are you arguing that the state cannot have a child abuse law governing unborn children?” Judge Kenneth Ripple asked Nancy Rosenbloom from the National Advocates for Pregnant Women, attorney for plaintiff Tamara Loertscher.
And Judge Daniel Manion pressed, “You’re saying there should be no external protection for an unborn baby?”
Rosenbloom answered “no” to both questions.
The all-male Seventh Circuit panel, rounded out by Judge Joel Flaum, is made up of three Ronald Reagan appointees, the youngest of whom is 74 years old.
In 1997, the Wisconsin Legislature passed Act 292, colloquially known as the “cocaine mom” law, to protect unborn children from the “habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.”
To this end, the law permits the jailing of an expectant mother if a court intake worker, after receiving a referral from a health care provider, finds that the mother uses drugs or alcohol, or has a history of past addiction that may endanger the fetus.
Rosenbloom’s client, Loertscher, was jailed for 18 days during her pregnancy in 2014 after she voluntarily sought medical help for her thyroid condition. Before her release, state officials forced the 29-year-old to submit to regular drug monitoring and treatment in Taylor County, Wis.
She never tested positive for drugs after her release and gave birth to a healthy baby boy in January 2015.
Loertscher became pregnant while she was going through a period of depression and unemployment. Loertscher, who did not believe it was 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 she was pregnant.
A federal judge struck down the law in May, ruling that the words “habitual,” “self-control” and “severe” used in the statute were so vague that there was no standard for enforcing the law.
But in an unusual order, the U.S. Supreme Court stayed the judge’s decision, after the Seventh Circuit denied a stay.
At oral arguments Thursday morning, Wisconsin Solicitor General Misha Tseytlin told the Seventh Circuit panel that “habitual” and “lack of self-control” are terms of art commonly used in the substance abuse area and are understood by people trained in that field.
He characterized the law as primarily providing voluntary health and social services for mothers in need of help.
But Rosenbloom told the court the law’s real implications are quite different.
“This is not a benign public health law. It creates a unique statutory scheme where juvenile courts can detain adult women in confidential court proceedings,” Rosenbloom said.
Because the proceedings occur in juvenile court, there is no record of what happens to the woman detained under Act 292, she said.
“All of this happens without access to counsel,” Rosenbloom continued.
Although mothers have no right to counsel – unless they can pay an attorney themselves – the state immediately appoints a guardian ad litem, who is an attorney, for the unborn child.
In Loertscher’s case, “without even speaking to her, the child’s mother, the guardian ad litem admitted in court on behalf of the fetus all the accusations of child abuse against Loertscher,” Rosenbloom said.
The judges repeatedly pressed Rosenbloom to suggest how the law could be changed to make it constitutional while keeping protections for the child in place.
“What can they do to save the unborn child from an uncooperative mother?” Ripple asked.
Citing the American Medical Association’s amicus brief in the case, Rosenbloom told the panel that doctors agree that “coerced treatment does not work.”
The AMA’s brief, joined by nine other medical organizations, urges the court not to treat pregnancy as a conflict between the mother and fetus, and to consider drug use a medical condition that needs treatment – not jail time. It warns that the punitive intervention authorized by Act 292 is likely to discourage women from seeking prenatal care.
The brief also, surprisingly, downplays the potential harm drug use may cause an unborn child.
“The State relies on the popular, but scientifically disproven, perception regarding the relative harms of in utero exposure to controlled substances,” the AMA brief states. “As the district court correctly noted after considering expert testimony presented by both the State and Ms. Loertscher, ‘no one knows what level of drug or alcohol use poses a risk to the child.’”
Judge Ripple found this statement incredulous.
“That brief has a credibility of zero,” he told Rosenbloom. “A pregnant woman goes to the doctor’s office, the doctor’s going to tell her to stay away from the stuff or his malpractice insurer is going to be very angry.”
When again urged to suggest how the state could better help pregnant women, Rosenbloom said that “if the state really cares about the health of women and babies” – implying that, perhaps, it does not – the Legislature could pass a law to provide more voluntary health services for pregnant women.
On rebuttal, Judge Ripple told Tseyltin that the solicitor’s “ship has taken a hit” on the issue of due process, given accused women’s lack of access to counsel.
However, the judge did not press the issue when Tseyltin simply responded that the cases are supervised by the Wisconsin court system, which he said is the “gold standard” in the U.S.
More than 3,300 reports of unborn child abuse were “screened-in” under the Act 292 between 2005 and 2014, according to court records. Of these, just 467 were substantiated.
The Seventh Circuit is expected to issue a ruling in the case within three months.