MADISON, Wis. — A federal judge has struck down a Wisconsin law that allowed the state to detain pregnant women suspected of drug or alcohol abuse, saying the 1998 law meant to protect developing fetuses was unconstitutionally vague.
U.S. District Judge James Peterson wrote in his ruling April 28 that the law’s language was unclear on both the amount of drug or alcohol use by pregnant women that should prompt state action, and what constituted “substantial risk” to the health of the fetus. He said the requirements were not “amenable to reasonably precise interpretation.”
The case involved former Wisconsin resident Tammy Loertscher, who was 14 weeks pregnant in 2014 when tests showed traces of methamphetamine in her body. She told a doctor she had stopped using when she thought she was pregnant. But a judge ordered her into inpatient drug treatment. When she refused, she was jailed for 18 days until she agreed to drug testing throughout her pregnancy.
The state Department of Justice, which could appeal, is still reviewing the decision and had no further comment, spokesman Johnny Koremenos said May 1.
Doctors who say the law discourages pregnant women struggling with addiction from seeking prenatal care and being open about drug use praised the ruling.
“For the first time in 19 years, Wisconsin women who become pregnant and seek medical help can do so without fear that their confidentiality will be violated and their health and their baby’s health undermined by forced treatment and punishment based on medical misinformation and stigma,” said Dr. Kathy Hartke, Wisconsin chair of the American College of Obstetricians and Gynecologists, said in a statement.
The National Advocates for Pregnant Women, which represented Loertscher, said her son is now a healthy and thriving 2-year-old.
“Loertscher and her family felt driven out of Wisconsin as a result of the government’s actions, and now live in another state,” the group said in a statement.
The group said authorities screened 3,326 reports of abuse against fetuses under the law between 2005 and 2014. The state made claims against 467 women, and in at least 152 cases, authorities removed children from their parents after birth.
Dr. Aleksandra Zgierska, president of the Wisconsin chapter of the American Society of Addiction Medicine, said babies’ health has more to do with socioeconomic factors such as poverty, nutrition and access to health care than what pregnant women do or don’t do during pregnancy.