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.


[Loertscher v. Anderson / Wonkette / Advocates for Pregnant Women / Mother Jones]

Buckle up, Wonkers! This day is going to be crazy. Don’t forget to tip your server.

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  • Riley Whodat Venable

    Thanks $5F.
    I thought Wisconsin was a progressive state. It isn’t?

    • JohnBull

      So is Iowa. But the nutjobs have taken over temporarily and the smart people are heading out, leaving more room for more nutjobs. This is what happened to Kansas.

      • Oblios_Cap

        They need better beaches. Not that it has helped Florida all that much.

        • Wild Cat

          Remember when Florida was a liberal safety-net state? Long time gone.

  • OddMan
  • SnarkON

    This is one of those exquisitely nuanced issues that don’t play well on the Internet (or anywhere else in America). It is immoral to punish a pregnant mother for abusing drugs or alcohol. Yet is also immoral for a pregnant mother to abuse her fetus by exposing it to drugs and alcohol. Obviously jail is not the answer, but I sure wish we could figure out a way to help these mothers and their babies. It’s truly horrible to think about a newborn coming into this world already addicted, or suffering from fetal alcohol syndrome. Before you flame me, I am a woman, I am a mother, I am pro-legalization of weed, I am an atheist, and I am pro-choice.

    • Chadwells

      I completely agree. No easy answer.

    • vivian

      No flames required. What I don’t get is the Republican outrage at “the Nanny State” while they simultaneously litigate on behalf of fetuses yet neglect the living. See also: Pro-Death Penalty yet ‘Pro-Life’. It’s almost as if Leviticus wasn’t the best source for modern jurisprudence.

    • JohnBull

      Complicated issues need deep reflection. You won’t find that in today’s Wisconsin. Or Iowa anymore.

      • Unmutual Tetsu Kaba

        Or much of the rest of the country.

    • Lance Thrustwell

      There is a way! It’s just not failsafe, that’s all. There just needs to be lots of easily accessible, free, educational, psychological and nutritional programs for pregnant women – complete with snacks, support groups, donated tickets, all the trimmings.

      Will it work 100%? Silly question. But it’ll help.

      • SnarkON


      • Lamashtar

        You had me at “snacks”. Free childcare also helpful.

    • MizzMazz

      Thank you. I was trying to think about how situations like this could be solved without jail and without a newborn having to suffer. No easy answers, are there? Certainly not jail, but help. You said much more eloquently than I did.

  • Nounverb911

    “Laws aren’t supposed to sneak up on a person — they need to spell out clearly what you’re not supposed to do”

    Trump to issue EO abolishing this in 3…2…1…

  • FlemmishSpy
    • PubOption

      As well as a vassal.

  • Randy Riddle

    “…receives prompt and adequate treatment for that habitual lack of self-control.”

    Trump is getting treatment for his Twitter use?

    • shivaskeeper

      Silly, shit like this only applies to the wimminz. Their little lady-bodies need to be protected from all the bad decisions they make with their lady-brains. Especially since there is no other way to incubate a fetus at that point.

  • Michael Smith

    Sending people to jail fixes everything!

    • MynameisBlarney

      Especially if they’re private prisons!

      • Oblios_Cap

        Are there no workhouses?

        • Contemplative Ron

          Don’t give them ideas. Though I actually expect to see this one come to pass sooner or later.

      • Magyar Has Had It With Trump

        Prison “helth care” contracts are where the real money’s at

  • MynameisBlarney

    Just one day?!!?

    Is that too much to ask?

    • Msgr_MΩment

      Can we hug them with smallpox blankets?

      • MynameisBlarney

        Or Iron Maidens?

  • OddMan
    • Contemplative Ron

      They’re renaming it ‘The Evening News.’

  • Chadwells

    This shit is just sad no matter how you look at it.

  • Ωbjectifier

    That is today’s nice time? Gonna be a shitty day.

  • baconzgood

    Good deal justice was served…..eventually

    • MynameisBlarney

      Are you now free range baconz?

      • baconzgood

        Waiting for some sort of paper work to process. I want out today. I want to get home and shower with real shampoo instead of this Bob Barker crap..

        • Shanzgood

          And get a proper shave.

          • baconzgood

            There is no excuse for a hairy taint

          • Shanzgood

            Uh huh: all the rolls of TP in the staff restroom. L

        • MynameisBlarney

          Got my fingers, toes and eyes crossed for ya.

        • Contemplative Ron

          Paperwork? Uh, oh.

      • Oblios_Cap

        He hasn’t quite been able to hit the boxed wine yet.

      • Msgr_MΩment
    • lroom

      Good to see you baconz!

  • baconzgood
    • JohnBull

      Nobody hunts out of season in Wisconsin!

  • Oblios_Cap

    Why can’t these busybodies just take over a homeowners association like the Good Ole Days, When America Was Great?

  • Msgr_MΩment

    These are the people the Gipper had in mind when he warned us against people saying, “Hi, I’m from the gubmint, and I’m here to help.”

  • memzilla Ω

    WHO THE FUCK THINKS OF A LAW MUCH LESS PASSES IT THAT IS WORSE THAN ENGLISH LAWS BEFORE THE MAGNA CARTA? Oh wait, let me channel the spirit of Sweyn Forkbeard, the Dane who claimed the English throne by right of conquest in 1013: *bzzt* “This law is too cruel and it is unusually idiotic” *bzzt*

    • Msgr_MΩment

      Danelaw libel!!

    • Stulexington

      Fuck the 90’s.

    • Alan

      Actually it’s happening a lot. They come up with the most ridiculous things they can and then wait to see if it’ll stick.

  • YoBunnyBunny

    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.

    Isn’t her entire little vacay at the clink-clink predicated on the fact that she IS pregnant?????

    The absurdity…

    • Stulexington

      IKR? So the judge said they did nothing wrong denying her prenatal care unless she took a pregnancy test to confirm that she really should be there for endangering her child she didn’t know about that wasn’t actually endangered according to the doctor she went to about being pregnant. You know, when she irresponsibly went to a doctor to make sure nothing bad happened in a pregnancy she was told was impossible.

  • Chadwells

    OT: I wish I could say I was shocked.

    “Trump Administration Hires Official Accused Of Sexually Assaulting Students”

  • MynameisBlarney
  • Me not sure

    Oh God! Whatever you do, DON’T, Google the definition of “jail baby”. It isn’t this.

  • Me not sure

    Oh God. Whatever you do, DON’T, Google the definition of “jail baby”. It isn’t this.

    • Beowoof14

      Oh you know that’s like a direct invitation to do so. And I can see republicans wanting to order this so baby can dress like Donald.

  • Wild Cat

    So, “In the Rise and Fall of the US,” one of the main factors of the fall is that Born-Again Ayn Rand Calvinist Brett Farve fellaters who wear blocks of cheese of their heads have to much Schlitz on the brain to keep their smelly government rational???

    • Alan

      Sounds accurate.

  • Alan

    Reality is reading more like an Onion story every day.

    • Contemplative Ron

      It’s gone well past The Onion and headed straight towards News of the Weird.

  • TJ Barke

    Handmaid’s Tale is not an instruction manual!

  • Bill D. Burger
  • Thaumaturgist

    Can they get men for habitually lacking self-control? Asking for a friend.

    • sgt. jmk of the résistance

      Of course not. Men are people, not property or vessels.

    • Red Bird Ω

      Isn’t lacking self-control considered essential to being a man?

  • Beowoof14

    Well she has to thank Wisconsin rep Paul Ryan, for making sure she will never be able to afford her thyroid drugs again. Working for Wisconsin’s wealthy and screw anyone who is having a tough time in life.

  • anwisok

    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.

    She . . . she was in jail BECAUSE she was pregnant, moran!

    • Red Bird Ω

      Exactly. The pregnancy was established fact.

      • natoslug

        It could have been bloating from tapeworms. Will nobody think of the tapeworms?!

    • Carole

      I know. It’s like Kafka on acid, with zombies.

    • Darkest Timeline Zach Morris

      If you don’t believe she’s pregnant, she should be released. It’s BASIC logic.

      • Contemplative Ron

        So completely beyond the comprehension of Rethugs, then.

  • VirginiaLady

    I give up. It’s impossible to out crazy this advanced level of crazy.

  • The Librarian

    Well, if you’re a lady type person, being pregnant could be against the law. Then again, these nuts want birth control to be against the law. I guess if ladies want sexy-times and no babbies, they should get a fun adult toy. Sorry guys, you’re just a liability…….

    • jesterpunk

      Wait until they ban adult toys too.

      • The Librarian

        Like Ted Cruz tried to?

        • jesterpunk

          Wait what? I was only kind of sarcastically joking there I didnt think republicans actually did that. Damn satire and reality are really hard to tell apart anymore with Republicans.

          • The Librarian
          • jesterpunk
          • The Librarian

            Yep. It’s amazing we all don’t have concussions yet.

          • Bitter Bunny

            Did I just read that??? I know he/they are batshit crazy, but that’s… indescribably insane!

            Maybe he’s developed some kind of weird psychological resentment towards his own sex toys because they’re all he can get. That’s the only thing that I can think of. Therapy is required, not legal shenanigans!

            (I hope at some point today my eyebrows lower to their normal position and I stop looking like I’ve had 15 bad face lifts)

          • The Librarian

            Just jealous that those toys are better endowed.

          • Magyar Has Had It With Trump

            There are some (Southern, of course) states that limit the types and NUMBER of sex toys you can own. Also, too – having over a certain number of condoms with you can be used as “evidence” you are a prostitute type person.

          • jesterpunk

            God damn it republicans.

          • That’s my forehead tattoo

          • Darkest Timeline Zach Morris

            Sex toys need to be regulated, but everyone should be able to own a gun. I… I just…HOW DID WE GET HERE

          • Happy, relaxed people are hard to control with fear.

          • Magyar Has Had It With Trump


          • aureolaborealis

            Makes sense. Only filthy hoors who rush down to meet the troop ships would have condoms. Also: teh geyz.

          • natoslug

            Well, there was the whole “Cocks not Glocks” protest down in Tejas a year or so ago, protesting UT’s pro-gun/anti-dildo rules.

          • aureolaborealis

            You don’t live in a red state. I have ways of knowing this.

          • jesterpunk

            I live in PA, it switches between blue and red but doesnt go full crazy red most of the time.

          • aureolaborealis

            When you live in a deep red state, there is literally no policy position or public statement by a wing-nut politician that is insane enough that you can be sure it was made up.

    • CatCafe #ShePurrsisted

      Females are not supposed to have sexy-times! You aren’t paying attention!
      We are plots of land to be fertilized and discarded at the whim of our owners!
      This was covered in Wingnut Bibble Class!

      • The Librarian

        Lol, too late for making more spawn, so I’d be considered disposable.

        • CatCafe #ShePurrsisted

          Exactly. We’re also considered invisible.

          • The Librarian

            And don’t forget, a pre-existing condition!!!!!11!!!

          • CatCafe #ShePurrsisted

            Oh, God, of course, how could I forget! ps, are you really a librarian? Mr. Cat Cafe is a rare book dealer, and when our son was in elementary school, almost singlehandedly built the school library. We are hearty advocates and donors for the L.A. Public Library, which is an amazing resource. I love librarians.

          • The Librarian

            Yes, I really am a librarian, 30+ years experience. Tell Mr. Cat Cafe that not only is he a library god, but I once was traveling in Ireland, went to a little local book sale and picked up a true Charles Dickens Christmas novella for a very good price. :)

          • CatCafe #ShePurrsisted

            What a wonderful story! And how great to be a librarian. I bow to you!

          • The Librarian

            Lol, I thank you. *curtsies*

  • President in Exile Firefly

    Guys, the Handmaid’s Tale is not a how-to manual.

    • natoslug

      Pull the other one — it’s got bells on. Next you’re going to tell me that Idiocracy was not meant to be a documentary.

  • fawkedifiknow

    Will those thyroid medications that woman could not afford in 2014 be covered now, under Trumpcare?

    Ha ha. That’s a joke, son.

  • Fidel Jack Tenhet

    Still reading, but before I forget, a lot of legal medications are controlled substances. Benzodiazapines of any kind, even a low dose of the sleep aid tamazepam is a schedule 4. So they can lock people up for following a doctor’s orders now? That’s not gonna backfire bigly.

    • Unmutual Tetsu Kaba

      ADHD meds, like opiates, are Schedule 2.

      • Magyar Has Had It With Trump

        Some anti-histamines can throw a positive for Meth.

        • IOnlyLikeCats

          Someone should tell pregnant women in Wisconsin not to eat any poppy seed bagels.

      • Fidel Jack Tenhet

        I don’t know a thing about those, never been on ADHD meds and never had any need or desire for opiates of any kind. I do, however, need a sleeping pill that works for at least eight hours or I won’t sleep at all. Too many rapid cycling nightmares.

        I’m not a vagina American, but I can see this nonsense having a chilling effect on any patient seeking any medical care at all for fear of being reported for what they say. Not everyone who becomes chemically dependent ever broke any laws or even abused any substance. Most of us were following a doctor’s orders.

        I say ‘us’ because I have been dependent on chemicals and will always be. I have a few illnesses that can only be treated by chemicals and some are harder to get off than others. It’s just reality.

        Xanax is harder to get off of than Klonopin or any other benzo out there. It just is and I don’t know why it is, I’m not a doctor. I did go through detox for Xanax and it’s still rough on a level I never encountered before in my entire life. You can seize and/or die coming off that without close medical supervision. That’s regardless of whether you’re a good person, a vagina haver or just a nasty, slutty drug abuser. It’s all really the same in the end.

        • Sarah E. Grove

          I just started Effexor … anyone have any e perience with that? Positive or negative, just wondering.

  • Unmutual Tetsu Kaba


    "Why should insurance cover pregnancy? Females should just disgorge their viable egg-sacs, not carry live young." – @SpeakerRyan, probably— Foz Meadows (@fozmeadows) May 4, 2017

  • Parakeetist

    My uterus rebukes you!

  • Saxo the Grammarian

    In Renaissance England, women were expected to seek absolution from the Church for the “sin” of childbirth. Punishing pregnant women has been A Thing for a long, long time.

    • C4TWOMAN

      All women back then? It’s probably something to do with Original Sin, blah blah. With a side of religious misogyny injected by the Roman Church.(This shit didn’t exist in Northern European Cultures until after the Roman Invasions and the Dark Ages).

      Female criminals later learned to “hack the system” so to speak: if they were sentenced to hang, they would “plead on their bellies”, claiming to be pregnant, since all that religious bs meant it was illegal to murder the innocent child she was carrying. That bought them 6 more months or so to either give birth or discover nope she lied and back to the gallows with you. But there was also a chance she could be sent to the Colonies instead, so it was worth a go.

      History is fun!

    • Grumpy Twat

      My non-religious grandmother was “churched” after my mother was born. She wasn’t too happy that my non-religious wife didn’t do the same.
      She remembered a time when you wouldn’t have been allowed into your neighbour’s house until you had been to church.

  • disqus_lWwzrwNaw6

    We all know this is going to get worse and worse and worse, don’t we? We’re not going to fix it with indignant news stories, social media campaigns, demonstrations, phone calls.

    We’re sure not going to fix it with votes. The Republicans, marching ahead into totalitarian madness on multiple fronts at the state and federal levels, have clearly been reassured by their dark money owners not to worry their precious little heads about 2018, when–between voter suppression, hacking, propaganda, and outright electoral theft, plus maybe some roving bands of tubby white militias armed with Bushmasters to warn off the “wrong sorts” of voters–Republican Victory will be assured no matter how a majority of the citizens of this country may happen to feel about the things Republicans are doing to America.

    The problem is, this is that old analogy about boiling a frog, the one where you can’t throw a frog directly into boiling water to kill it, because it will jump right out, but you can kill that frog by placing it in a pot of cold water and then raising the temperature gradually.

    We keep acting as though they just turned on the flames, but in fact, they got started back in around 1980, and the water is now nearing a full and steady boil.

    • natoslug

      The water was at a nice simmer by 1980, the heat having been turned up during the Nixon years. The anti-government Republican movement has been working at destroying America for ~45 years now.

      • CatCafe #ShePurrsisted

        Ever since the New Deal.

        • natoslug

          At this point, I would be willing to believe at least one of the signatories on the Declaration of Independence was a Tea Party member, hell-bent on overthrowing the government. Er, I mean the Untied States of Amercia gubmint. And at least two sailing with Colombus.

      • javadavis

        I thought Johnson started it.

    • Lamashtar

      You’ve stated my worries nicely. I like to think the Trump presidency IS that sudden jump in temperature though. One irony is that fear of outsiders messing with our elections has focused our attention on evidence of our elections being messed with–especially voting machines and the voter purges.

    • meanlawyermom

      I would like to take this whole comment and shout it from the rooftops and the Facebook and everywhere. It’s exactly how I’ve been feeling, but didn’t know how to express.

  • honeywest

    Don’t fight it, Offred!

  • Contemplative Ron

    The way I read this, a pregnant woman could be locked up because she keeps buying shoes. Do I have that right?

  • PixieThis

    I really feel like OfMrPixie is going to have a very bad day. Lots of triggers today.

  • Bitter Scribe

    What’s with you, Wisconsin? You used to be cool.

    • Also: McCarthy

    • motmelere

      We were never cool. Sure, Feingold was the only senator to vote against the Patriot Act and Gaylord Nelson officially started Earth Day, but most of us are more into that John Birch/McCarthy mindset.

  • gratuitous

    The judge locks her up for doing Bad Stuff While Pregnant, but the lock-up won’t let her be treated or seen by an obstetrician because she won’t pee on a stick to prove she’s pregnant? Does anyone else see a disconnect here, or is it just me?

  • Zyxomma

    Thanks, FDF.

  • unpocketedstupidcomments

    I think the law works for the most part. I just added in a couple changes that might make it more effective in protecting the lives of children whether they’re born or “unborn”:

    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 Republican legislators habitually lack self-control in the use of ancient religious texts to control and subjugate women, 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 Republican legislators receive prompt and adequate treatment for that habitual lack of self-control. The court also has exclusive original jurisdiction over the Republican legislators of an unborn child described in this section.

  • Goposaur

    Want to shut up a con? Ask them how much time should a doctor or a woman be sentenced to for having an abortion, and no fair hiding behind so-called “state’s rights” in terms of sentencing guidelines.

    [sputter sputter crickets]

  • Jeff Mc Donald

    A modern American social version of, “To save the village, we had to destroy it.”?

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