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Women Suspected of Using Drugs While Pregnant Can Be Jailed to Keep Fetus Safe

Earlier this year, a court struck down Wisconsin's notorious "Cocaine Mom Law," which punishes pregnant women with addiction issues. Last week, however, the Supreme Court ruled that the state could continue enforcing the law as it pends appeal.
Photo by Laura Stolfi via Stocksy

In August of 2014, a 29-year-old woman named Tamara Loertscher went to the doctor in her home state of Wisconsin. She was suffering from a severe thyroid condition that left her fatigued and depressed, and says she self-medicated with methamphetamine. She also suspected—correctly—that she was pregnant.

On September 4, under the state's so-called "Cocaine Mom Law," Loertscher was [ordered]( SJ Opinion.pdf) to either enter an inpatient treatment facility or spend 30 days in jail. (She wasn't provided with a lawyer, although her fetus was given its own legal representation.) That evening, she surrendered to the Taylor County Jail, where she would remain incarcerated for 18 days.


Read more: Yes, You Can Get Pregnant When You're Already Pregnant

Loertscher went on to sue the state of Wisconsin over her detention, and in April a federal court ruled in her favor, declaring the Cocaine Mom Law vague and unconstitutional—a landmark achievement for women after two decades of a clear overreach in state power. The state appealed, and an appeals court blocked enforcement of the law while it reviews the case. On Friday, however, the US Supreme Court overturned that stay, ruling that the state of Wisconsin may resume enforcing the law, which allows for the involuntary detainment of pregnant women.

Under the 1997 law, if a mother exhibits "habitual lack of self-control" over "severe" drug or alcohol use, she can be taken into state custody if the state feels she presents a "substantial risk" to "the physical health of the unborn child." Most major medical organizations oppose criminalizing pregnant women with addiction issues, and in 2017 Amnesty International released a report arguing laws that police pregnant women's behavior "in fact [drive] pregnant women away from vital health services, jeopardizing their well-being and violating their right to health."

Not only is the law vague and misinterpreted, it acts as a deterrent for women to seek prenatal care.

During her time in state custody—where she was purportedly detained to protect the fetus—Loertscher was reportedly held in solitary confinement and threatened with the use of Tasers. "This was my first pregnancy, so I didn't know what to expect," Loerstcher told Rewire in 2014. "I was having lots of cramping and a lot of stress from everything, and they wouldn't allow me to see the doctor."


Dr. Kathy Hartke, chair of the Wisconsin section of the American Congress of Obstetricians and Gynecologists (ACOG), told Broadly that the organization is "extremely disappointed" in the Supreme Court ruling. "Many more women will now be subjected to punitive responses, contrary to public health recommendations," Hartke said. "Not only is the law vague and misinterpreted, it acts as a deterrent for women to seek prenatal care, which is dangerous to both maternal and fetal health."

The National Advocates for Pregnant Women (NAPW), the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm in Madison, Wisconsin, are all representing Loertscher. In a statement sent to Broadly, the legal team explained that, under the Cocaine Mom Law, "women have been detained in mental hospitals, jails, and treatment facilities if they are pregnant and use—or even disclose past use of—alcohol or a controlled substance."

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"We are disappointed in the temporary procedural ruling by the Supreme Court," the statement said. "The District Court's ruling was based on extensive evidence, including the opinions of renowned medical experts, who testified about the broad scientific consensus that voluntary, confidential health care is the most effective way to promote healthy mothers and babies."

Loertscher's legal representatives say they're "confident" that the appeals court will "uphold the well-reasoned and thorough district court decision" from April, striking down the law and recognizing the unconstitutionality of jailing and institutionalizing pregnant women for seeking medical care.