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Federal judge voids Wisconsin law authorizing detention of pregnant women suspected of drug, alcohol abuse

Tamara M. Loertscher v. Eloise Anderson, et al., No. 14-cv-870-jdp (W.D. Wis. April 28, 2017)

Under § 48.193, which was created by 1997 Wisconsin Act 292, a juvenile court may treat an unborn child of any gestational age as a child in need of protection or services if the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. A federal judge has ruled the statute is void for vagueness.

…. At the heart of the Act [292] are two concepts: “habitual lack of self-control” and “substantial risk to the physical health of the unborn child.” Both concepts are essential components of the jurisdictional and substantive standards in the Act. But, for reasons explained in this opinion, neither of these concepts is amenable to reasonably precise interpretation. Thus, the Act affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement. The court will enjoin enforcement of the Act statewide. …. (Slip op. at 2).

Loertscher was detained for several days in a hospital and then confined for contempt for 18 days until she signed a consent decree requiring her to submit to drug monitoring and treatment by county authorities (though she has since given birth, the consent decree has expired, and proceedings against her have terminated). (Slip op. at 1). She argued the law violates substantive due process, procedural due process, the First and Fourth Amendments, and her right to equal protection. This decision addresses only the vagueness claim, not “the other difficult constitutional questions raised by the parties’ motions” and notes that the “other potential constitutional problems may be ameliorated if its jurisdictional and substantive standards are drawn with adequate clarity.” (Slip op. at 2).

News coverage here and here. If you litigate these cases you will want to read the entire 40-page opinion. And you may also be interested in the amicus brief in support of Loertscher filed by the American College of Obstetricians and Gynecologists, the American Society of Addition Medicine, and the American Public Health Association.

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