In the wake of Tuesday’s stunning national election results, advocates must rely on the courts, more than ever, to protect our fundamental liberties. A record $2.4 million in donations flooded the ACLU and similar litigation advocacy organizations within 24 hours of Donald Trump becoming president-elect.
While it is true that Senate Republicans have thwarted President Obama’s attempts to fill the Supreme Court vacancy, they have not been able to stop him from successfully shifting the balance of power in the judiciary. Over the course of his two terms, the President has appointed hundreds of judges to lower federal courts, where most law is made. Now democratic-appointees dominate nine of the thirteen circuit courts.
In federal district court, Tamara Loertscher, a young mother, is attempting to use this strategy to challenge Wisconsin’s “cocaine mom” law. The 1997 statute was passed in response to misguided fears about “crack babies.” The law allows the state to commit, imprison, or control private medical decisions of pregnant women who use or have used alcohol or a controlled substance.
Like other failed policies of the war on drugs, the prosecution of pregnant women ignores scientific and medical evidence, in favor of stigmatization and punishment. Such policies primarily harm women of color, poor women. They also harm the fetuses and children of these women by cutting off access to prenatal care.
Tamara Loertscher has a severe thyroid condition. In February 2014 she lost her job and could no longer afford her thyroid medication. As a result, she became extremely depressed and started using amphetamines and marijuana on occasion. Tamara believed that she couldn’t get pregnant due to her thyroid condition, but, at the end of July 2014, she thought she might be. She immediately stopped all drug and alcohol use and promptly went to the hospital to confirm the pregnancy and to seek medical and prenatal care.
Even though Tamara voluntarily stopped all drug use, had no history of dependency, and was forthcoming with medical providers, hospital staff passed her medical information along to state authorities without her knowledge or consent. Hearings were initiated against her, during which she was twice refused a lawyer. She was detained and ultimately sent to jail for 18 days, where she was denied prenatal care, drug education, and, for a period, her thyroid medications.
On January 23, 2015, Tamara gave birth to a healthy baby boy.
Yesterday, the Drug Policy Alliance filed an amicus brief on behalf of the American College of Obstetricians and Gynecologists, American Society of Addiction Medicine, and American Public Health Association in support of Tamara. These three widely respected, national medical and public health organizations agree that Wisconsin’s cocaine mom law lacks any legal, medical or scientific foundation and fails to advance fetus health. In addition, the law is based on outdated and unfounded assumptions about the effects of prenatal exposure to controlled substances, which are not supported by evidence-based research and reflect a basic misunderstanding of the nature of problematic drug use.
Last month, the United Nations Working Group on Arbitrary Detention echoed these sentiments when it found the following about such proceedings against pregnant women “should be replaced with alternative measures that protect women without jeopardizing their liberty. Affirmative steps should be taken by authorities . . . to maximize the availability of healthcare – including prenatal care, treatment for addiction, and outpatient services . . . [C]onfinement or involuntary treatment should be used only as a last resort when a person poses an immediate threat to themselves or other persons, only for the shortest period of time, and with appropriate due process guarantees.”
Maternal and fetal health is better advance through policies that foster a supportive patient-provider relationship, discourage stigma, and increase access to prenatal care. Wisconsin’s “cocaine mom” law erodes trust and deters the vulnerable women from prenatal care.
Jolene Forman is a staff attorney with the Drug Policy Alliance.