Hooray, it is NiceTimes! Well, nice-ish. Last week a federal court told Wisconsin to stop putting pregnant women in jail for suspected drug use. Yay! But they didn’t exactly slam the door shut on it, either. Boo! So, for all the inseminators and holy vessels out in Wonkland … a little Lawsplorer!
In 1997, the Wisconsin Supreme Court told social service agencies that they couldn’t use the child protection statute to prosecute pregnant women for drug use. But then a bunch of Badger State Busybodies got together and said, Women? What women? All we see are babyfactories! THERE SHOULD BE A LAW! At which point the actual lawyers on the Wisconsin Legislative Council said, THERE SHOULD DEFINITELY NOT BE A LAW! Because it is “highly doubtful” that any version of this law would pass constitutional muster. And all the social service agencies and health departments said, THERE SHOULD DEFINITELY NOT BE A LAW, because it is bad public policy to discourage women from seeking prenatal care by threatening to throw them in jail. But the Busybodies said, SHOULD, TOO! And because the lawyers were too mean to help, the Busybodies stomped off to their clubhouse and wrote the thing themselves. SO THERE!
But because their degrees were in Butting In and Bossing Around, rather than Boring Lawstuff, the Busybodies just strung together some judgmental arglebargle in 36pt wingdings. PROBABLY. Then they got the Legislature to pass it! Go, Packers!
Because this case rests on the sheer derpitude of the statute, we’ll dump a big chunk of it here in all of its gobbledygook glory.
Wis. Stat.§ 48.133 Jurisdiction over unborn children in need of protection or services and the expectant mothers of those unborn children. The court has exclusive original jurisdiction over an unborn child alleged to be in need of protection or services which can be ordered by the court whose expectant 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, and of the child when born, will be seriously affected or endangered unless the expectant mother receives prompt and adequate treatment for that habitual lack of self-control. The court also has exclusive original jurisdiction over the expectant mother of an unborn child described in this section.
The court is supposed to make a finding that a woman “habitually lacks self-control”??? Is that normal?
Spoiler Alert: It is not. And yet it stayed on the books for twenty fucking years.
Of course your Dok Zoom told you about this case in 2014, when Wisconsin resident Tamara Loertscher was originally arrested. But you probably blocked it out, because your therapist told you to dial back the rage and try yoga, right?
To recap: Loertscher had undergone radiation treatment in her teens which damaged her thyroid. Doctors prescribed a permanent regimen of thyroid medication and told Loertscher that she was probably sterile. In the months before her unexpected pregnancy at age 29, Loertscher was unable to afford the thyroid medication she needed. Without her hormones regulated, Loertscher fell into a crippling depression which she treated with methamphetamine and marijuana. When Loertscher realized that she was pregnant, she went to a doctor to confirm that the drugs had not harmed the three-month-old fetus. Loertscher’s admitted drug use during the pregnancy triggered an investigation by the Taylor County Department of Human Services (TCDHS). For a month, Loertscher lived with her parents, stayed off drugs, and refused efforts by the TCDHS to force her into inpatient drug treatment. Finally, she was summoned to court, where no attorney was provided for her. The judge ordered her to enter treatment or go to jail.
That evening, Loertscher declined the court-ordered inpatient drug treatment and surrendered to the Taylor County Jail. She spent 18 days incarcerated there. During that time, she did not receive any prenatal care, because the jail would not provide prenatal care if Loertscher did not submit to a pregnancy test to “confirm” her pregnancy. Loertscher experienced pain and cramping, and she feared that she may have a miscarriage. Loertscher repeatedly asked to see an obstetrician; instead, she saw the jail doctor, who was not an obstetrician. The jail doctor told Loertscher to take a pregnancy test. When she refused, jail personnel put her in solitary confinement.
Eventually Loertscher found a list of Taylor County public defense attorneys and called the number listed. A public defender was appointed to represent Loertscher.
At which point, the attorney worked out a deal for Loertscher to get outpatient treatment. Loertscher stayed clean and delivered a healthy son. Then she got the hell out of Wisconsin because OMFG!!!!
Then she attempted to sue the shit out of Taylor County and the State of Wisconsin. Loertscher argued that the law was unconstitutional, that her own constitutional rights had been violated in multiple ways, and that she was entitled to monetary damages.
Here’s the good news: Last week the Court struck the law down as being void for vagueness. Laws aren’t supposed to sneak up on a person — they need to spell out clearly what you’re not supposed to do. A statute that makes it a crime to “habitually lack self control” is essentially meaningless. The same holds for finding that a fetus “will be seriously affected or endangered” if the mother uses drugs. Doctors agree that using a lot of drugs and alcohol during pregnancy is risky for the fetus. But there is no medical consensus on what level of exposure will cause harm. And if doctors don’t know what might “endanger” a fetus, judges know even less. Whodathunk those Busybodies were just BAD AT LAW?
Here’s the bad news: The Court refused to rule on any of the Constitutional claims. Having struck the law for being badly drafted, the judges said NO THANK YOU to wading into the politically contentious discussion of pregnant mothers who use drugs. They also denied Loertscher monetary damages, since TCDHS was following the law as written. Which means that someone less stupid than the Busybodies may take another crack at locking up pregnant women for the good of the children.
But for today, THIS IS PROBABLY THE ONLY NICETIMES WE’LL GET, AND WE ARE GOING TO ENJOY IT!
Buckle up, Wonkers! This day is going to be crazy. Don’t forget to tip your server.