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January 11, 2015 permalink
When Tamara Loertscher suspected she was pregnant she stopped using drugs and asked Taylor county Wisconsin social services for help. They knew just what to prescribe: 18 days in jail.
Pregnant woman challenging Wisconsin protective custody law
For the second time, a pregnant Wisconsin woman has challenged a state law that landed her in jail after she admitted to past drug use while seeking prenatal care.
Tamara Loertscher, 30, of Medford was jailed in Taylor County for 18 days — including three in solitary confinement — after a judge found her in contempt for refusing to move to a residential treatment center, according to the federal civil rights lawsuit she filed in Madison.
The lawsuit claims Wisconsin's so-called cocaine mom statute — meant to provide protection for developing fetuses — is unconstitutional, and seeks an injunction against its further use.
The 1998 law lets adult pregnant women suspected of current or past drug or alcohol use that could affect their fetus be held in secure custody and subjected to medical treatment involuntarily. Social workers can initiate confidential legal action in children's court; lawyers get appointed for a woman's fetus.
Last year, a pregnant woman ordered into a residential drug treatment center in West Bend also went to court, with the help of the same organization aiding Loertscher, the National Advocates for Pregnant Women.
Lawyers helped get Alicia Beltran released and Washington County to drop actions against her. Her federal lawsuit was dismissed this year as moot, because she has since had her baby and is not in custody or facing other legal consequences.
"As shocking as Beltran was, the Loertscher case is more so, and more revealing of how dangerous this law is to pregnant women and their unborn children," said Lynn Paltrow, executive director of National Advocates for Pregnant Women.
Critics, including many medical professionals, have long said laws aimed at protecting a fetus can scare pregnant women from seeking prenatal care or being honest with their doctors.
Neither the Taylor County officials involved in detaining Loertscher nor the state officials named as defendants in the lawsuit would comment on her case or the law in general.
But Rep. Andres Jacques, (R-De Pere) who was not in the Legislature when the law was passed, said it has likely helped dozens of women and their babies over the years, who were perhaps glad for the intervention.
"It's not meant to be hostile to women," he said, but if the lawsuits expose some problems administering the law, that could be addressed.
"But scrapping the whole law? That's a very strong overreach," he said.
At the time the bill was working its way through the Legislature, lawmakers also said it could save money. Republican Mary Lazich of New Berlin — then a state representative, now a state senator — argued that delivery and initial medical care for cocaine-addicted babies, for example, cost more than eight times as much as delivery of a non-addicted baby.
Tests reveal past drug use
According to the suit:
Loertscher was suffering from hypothyroidism and depression when she began using methamphetamines last winter. In late July she stopped using any drugs because she thought she might be pregnant. On Aug. 1, she sought help with Taylor County social services, which referred her to the emergency room at Eau Claire Mayo Clinic.
At the clinic, a urine test showed Loertscher was pregnant, and also revealed her past drug use. Another test confirmed she had a severe thyroid condition.
Medical officials shared the findings with the county social services personnel, who subsequently went to court and had a guardian ad litem appointed for Loertscher's 14-week-old fetus.
Social workers asked Loertscher repeatedly to release her medical records to county officials, and said that if she didn't, she would be jailed until she had her baby, which would then be put up for adoption.
When Loertscher finally said she wanted to go home, she was told she was the subject of a temporary custody order obtained by Taylor County and could not leave. The next day, still at the Eau Claire Mayo Clinic, she was taken to a room where Court Commissioner Greg Krug was on speaker phone and told her to sign a petition — as if she was initiating protective action on the unborn child herself. She refused and said she wouldn't answer questions without a lawyer and left the room.
The court commissioner deemed that Loertscher had waived her appearance. Taylor County Corporation Counsel Courtney Graff, also on speaker, told a doctor at the Mayo Clinic that breaching Loertscher's confidentiality was not an issue for this type of proceeding and the doctor then discussed Loertscher's conditions and treatment, as well as her past drug use that she admitted to in her initial interview at the clinic.
Krug then ordered Loertscher held. The next day, she was told, she would be taken from Mayo to a residential addiction center in Eau Claire pursuant to court order, but would first have to supply a blood sample. She refused, and demanded to go home.
Mayo doctors then met with her, prescribed medication for depression and hypothyroidism and released her.
About 10 days later, Taylor County officials and the guardian ad litem asked a court to order Loertscher into custody. On Sept. 14, Loertscher appeared in court without a lawyer. A judge ordered her jailed on contempt for not following the earlier orders.
Jail, solitary confinement
In jail, she was told to provide a urine sample, and when she refused, was put in solitary confinement for 36 hours. She missed prenatal care appointments and claims jail staff said she shouldn't have gotten herself in the position to miss the appointments.
Eventually, a public defender appointed for Loertscher won her release after she agreed to get drug and alcohol testing at her expense and share the results with the county.
But next, Taylor County human services made an administrative finding against Loertscher for child maltreatment, based on her medical records. She is appealing that finding.
"From our perspective, the entire proceeding was a violation of constitutional rights from start to finish," said Loertscher's Madison attorney, Freya Bowen.
She said all the drug test results have been negative, and Loertscher is expecting her first child in late January.
Bowen and Paltrow say the "cocaine mom" law subjects adult women to juvenile court jurisdiction based only on speculative harm to a fetus and violates their medical confidentiality.
The suit names as defendants Attorney General J.B. Van Hollen and Department of Children and Families Secretary Eloise Anderson. A Van Hollen spokesman said he had no comment, and one for Anderson said too many people were on vacation over the holidays to provide any information about how often the "cocaine mom" law is enforced.
Krug and Graff, the Taylor County officials described in the complaint, both said they could not comment because the actions against Loertscher were a juvenile court matter.
Source: Milwaukee Journal Sentinel