Wisconsinites Fight Back Against The Criminalization Of Pregnant Women

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Tamara Loertscher was uninsured, suffering from the health effects of an untreated thyroid condition, and using methamphetamine to self-medicate. She also started to suspect she was pregnant. So she went to a hospital in her home state of Wisconsin, hoping to take a pregnancy test and get some help managing the mental health issues stemming from her hypothyroidism.

Then she was sent to jail for 17 days.

That’s because, under a 1998 state law widely referred to as the “cocaine mom law,” Wisconsin is allowed to arrest and detain women if they are pregnant and admit to using drugs or alcohol. It’s a particularly sweeping example of a fetal harm measure — legislation in place across the country that cracks down on women for allegedly endangering their pregnancies.

This week, several reproductive rights and legal groups filed a civil rights lawsuit on behalf of Loertscher challenging the controversial “cocaine mom law.” The National Advocates for Pregnant Women, the Carr Center for Reproductive Justice, and the Perkins Coie law firm say that the measure infringes on pregnant women’s fundamental rights to liberty and privacy.

“Ms. Loertscher’s experience reflects how profoundly this Wisconsin law disrespects pregnant women,” Sara Ainsworth, the director of legal advocacy at National Advocates for Pregnant Women — a group that’s been fighting against these type of fetal endangerment charges for years — said in a statement.

According to the lawsuit, after Loertscher disclosed her past drug use to hospital staff, they passed along her confidential medical information to state authorities without her consent. Within days of her trip to the hospital, state officials allegedly filed a petition accusing Loerstcher of “abuse of an unborn child” and appointed an attorney to represent the interests of her 14-week-old fetus. She ended up in jail, and at one point was placed in solitary confinement, without any access to the thyroid medication or prenatal care she needed.

Even now that she’s out of jail, there are some concerns about the lasting consequences of a potential child abuse charge. Loertscher is currently a certified nursing assistant, but she won’t be allowed to work in the health care sector if she has that charge on her record, according to NAPW.

The advocacy group has identified at least 15 other cases of pregnant Wisconsin women being detained between 1973 and 2005 for allegedly endangering their fetuses or newborns by using illicit substances. Last year, the group filed a similar lawsuit on behalf of Wisconsin resident Alicia Beltran, who was arrested at 14 weeks pregnant after disclosing a previous prescription pill addiction. Beltran was forced to undergo drug treatment even though she was no longer using the pills.

Indeed, Loertscher’s case is just the latest in a long line of examples that illustrate the disturbing trend of states criminalizing pregnant women for allegedly causing harm to their fetuses by using illegal drugs. Critics say that these laws are based on scientific misinformation — although it may seem counterintuitive, there’s actually no conclusive evidence that fetuses exposed to illicit drugs in utero have lasting health problems — and ultimately punish women on the basis of simply being pregnant.

Allowing authorities to charge pregnant women with abusing their children effectively blurs the lines between women’s rights and fetuses’ rights, as well as furthers the right-wing definition of personhood. In another case in Montana, for instance, a woman was charged with child endangerment when she was just 12 weeks pregnant, even though she could have obtained a legal abortion after that point.

Plus, major medical groups like the American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists oppose fetal harm laws, pointing out they can deter women from seeking the medical attention they need. If women are worried that health workers will turn them over to the authorities, they may not seek the essential prenatal care or drug treatment that would actually make their pregnancies healthier.

That dynamic is all too clear in Loertscher’s case. “I was trying to do the right thing to take care of my pregnancy. I was really sick when I went to get help, but I feel like asking for help just made everything worse,” Loertscher said in a statement released by NAPW.