Federal Court of Appeals Decision Prevents Pregnant Woman’s Challenge to Wisconsin’s “Unborn Child Protection Act”

June 18, 2018 - Today a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit vacated a well-reasoned decision by a federal district court that had struck down Wisconsin's Unborn Child Protection Act (Act 292) as unconstitutional. The appeals court panel avoided grappling with Act 292's numerous constitutional problems by ruling that the woman challenging it, Tamara Loertscher, could not continue to do so because she had moved out of Wisconsin.

Lynn M. Paltrow, Executive Director of Pregnancy Justice said "As a result of this decision, women in Wisconsin who are pregnant and seek health care must continue to fear that the government will detain them, force them into treatment, and even send them to jail if they use - or even disclose past use of - alcohol or a controlled substance."

This is the second time that a federal court has relied on "mootness" grounds to prevent a Wisconsin woman from challenging Act 292. In the first case, a federal court held that because Alicia Beltran was no longer being forced to submit to treatment, she did not have standing to challenge the law. Nancy Rosenbloom, Director of Legal Advocacy at Pregnancy Justice explained that "The decision today demonstrates that it is extremely difficult for a woman to get justice in the federal courts when a law deprives her of her constitutional rights because she is pregnant."

The federal trial court decision that is vacated as a result of the 7th Circuit decision had concluded that Act 292 is a vaguely worded law that violates the U.S. Constitution's guarantee of due process of law. That court explained that Act 292 "affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement." As a result, the district court concluded, "erratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured."

Ms. Loertscher's own experience confirmed this conclusion. As a result of her seeking health care for a thyroid condition and to confirm pregnancy -- what the federal district court described as "her commitment to having a healthy baby and to take care of herself"-- the government seized her, ordered her into forced treatment and jailed her pursuant to Act 292. As the district court explained, "her history of modest drug and alcohol use, which she self-reported while seeking medical care," became the basis for Taylor County's claim that she "habitually lacked self-control" and a court hearing to determine whether she could be deprived of her freedom.

Under Act 292 Ms. Loertscher had no right to legal counsel appointed at that first hearing, but a lawyer was immediately appointed to represent her 14-week fetus. Following the hearing at which she was not represented, she essentially had the choice between being forcibly detained indefinitely in unnecessary residential drug treatment, or going to jail for 30 days. Ms. Loertscher ended up incarcerated in a county jail for weeks, where she was also held in solitary confinement for several days because she declined to take a pregnancy test.

Today's appeals court opinion does not address any of the evidence presented and ruled on by the district court. It ignores fundamental questions of whether Act 292 is constitutional in its wording, procedures, or in authorizing the state to lock up pregnant women who are not represented by counsel and without requiring any diagnosis or qualified medical evidence. The opinion merely denies this particular woman the opportunity to bring the challenge, despite her having diligently pursued three and one-half years of litigation and presented an extensive record showing how Act 292 strips pregnant women of their constitutional rights.

Nancy Rosenbloom explained, "In vacating on supposed mootness, the 7th Circuit opinion suggests that Act 292 is both clear and benign. It is neither. For example it omits the facts that Ms. Loertscher was not diagnosed with a substance use disorder and that she did not use any substances after confirming that she was pregnant. The opinion ignores that the doctor whose testimony was used to order unnecessary forced treatment admitted she was not an expert on the effects of drugs and had no idea her testimony would be used as a basis for jailing a pregnant woman."

Sarah Burns of the NYU School of Law Reproductive Justice Clinic said, "Competent, confidential, patient-centered prenatal care, above all else, is the greatest guarantee of a healthy pregnancy. Ms. Loertscher voluntarily sought that and the government took that away from her. The state violated her confidentiality, ordered her into a treatment facility that did not provide prenatal care, and incarcerated her in a county jail designed to hold suspected criminals, which also did not provide prenatal care."

Pregnancy Justice, the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm in Madison, Wisconsin represent plaintiff Tamara Loertscher.

For more information, please contact Shawn Steiner, Media and Communications Manager
SCS@AdvocatesforPregnantWomen.org | 212.255.9252 | 917.497.3037