Judge Blocks Wisconsin’s ‘Cocaine Mom’ Law

By Kelly Burch 05/04/17

Many in the medical community believed the vague law could prevent women battling addiction from seeking prenatal services. 

rear view of a handcuffed woman.

A federal judge has blocked Wisconsin’s so-called “Cocaine Mom” law, which allowed the state to detain pregnant women suspected of drug or alcohol abuse on the grounds that they are abusing their unborn fetus. 

U.S. District Court Judge James Peterson, based in Madison, ruled that the law was too vague to be enforced fairly. 

“Erratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured,” Peterson wrote in his ruling, as reported by the Wisconsin State Journal

The law did not outline what level of drug or alcohol use would warrant state intervention. The law says that the state must intervene to protect the fetus if the “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.”  

Peterson noted in his ruling that the way the law is written is not “amenable to reasonably precise interpretation.” He blocked enforcement of the law throughout Wisconsin. 

The law was passed in 1997, and allows the state to treat unborn fetuses as children. Between 2005 and 2014, 3,326 cases of suspected abuse were screened because of the law, and 467 cases of abuse against fetuses were brought by the state. However, many state agencies including the Division of Public Health, the City of Milwaukee Health Department, the state Division of Children and Family Services, and the Department of Children and Families oppose the law. 

The case was brought to federal court by Tammy Loertscher. Loertscher told doctors that she had used alcohol, marijuana and methamphetamine, but stopped when she realized that she was pregnant. However, when she was 14 weeks pregnant traces of the drugs still showed on tests. Because of that, Loertscher was ordered into inpatient drug treatment. When she refused, she was taken to jail for 18 days—including 36 hours of solitary confinement—until she agreed to drug testing throughout her pregnancy. 

Many in the medical community celebrated the blocking of the law, which they said could prevent women from seeking prenatal services. 

“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, chair of the Wisconsin chapter of the American College of Obstetricians and Gynecologists.

The state Department of Justice could still appeal the ruling, though it has declined to comment at this point.

However, in a statement prepared for the case in December the state said, “Children are protected from abuse from the moment they are born. It only makes sense that they be protected from abuse before birth as well.”

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Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.