Pregnancy Justice Fights to Preserve Court Victory Striking Down “Unborn Child Protection” Law

New York, May 18, 2017—Three weeks ago, the federal court struck down a Wisconsin law authorizing the detention, forced treatment, and incarceration of pregnant women as unconstitutional. The law allowed the state to seize control of women, detain them in jail or other locked facilities, and force them to submit to unconsented to and inappropriate treatment if they are pregnant and use – or even disclose past use of – any amount of alcohol or a controlled substance. As Dr. Kathy Hartke, an obstetrician-gynecologist who served as an expert in the case explained, this approach does not protect anyone, including babies.

The 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. Hundreds of Wisconsin women have been reported and investigated under this law. Because of this ruling, Wisconsin women now have relief from the constant fear that voluntarily seeking prenatal care could result in being hauled into court, detained, forced to submit to inappropriate treatment or jailed.

Wisconsin’s Attorney General Schimel disagrees with the court’s decision and plans to pursue an appeal. Unfortunately, the A.G. issued a public statement today filled with inaccuracies, and political grandstanding rather than a responsible, medically supported approach to maternal and child health care. Schimel suggests that the state can only provide health care and other social services to pregnant women by force and coercion, but the state was unable to prove that in court. He also claims that the women who challenged the law do not understand the effects of “drug use by pregnant women.” The federal court’s ruling makes clear, based on medical evidence, that these statements are not so. The state already does and can continue to provide health care, drug treatment for those who need it, and other social services to people on a voluntary basis. The state also has a civil commitment law that can be used when there is a genuine need.

Respected medical groups including the American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists (ACOG) all have policies emphasizing that criminal sanctions and other punishment are not appropriate for pregnant women who use or have used alcohol or other substances; with such responses, pregnant women will be likely to avoid seeking prenatal or open medical care. For women who do have substance use disorders, ACOG states that “seeking obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing.” (ACOG Committee on Health Care for Underserved Women, Committee Opinion 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist (2011, reaffirmed 2014)).

Lynn Paltrow, Executive Director of Pregnancy Justice, one of the lawyers representing those who successfully challenged the law, said “This law was passed despite the objection of the Wisconsin medical community. Giving state authorities the power to lock up pregnant women in “treatment” that might not be needed or in county jails with no prenatal care might advance political careers but it certainly does not protect maternal or child health.”

Pregnancy Justice, the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm in Madison, Wisconsin represent plaintiff Tamara Loertscher, who sued the State of Wisconsin and Taylor County after government officials transformed her efforts to obtain medical care into the basis for forced, unnecessary treatment and then incarceration.

For information, please contact: Shawn Steiner, Media & Communications Manager – Pregnancy Justice, 212. 255. 9252 ext. 33, (c) 917.497.3037

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