MADISON, Wis. — Wisconsin has asked the U.S. Supreme Court to take emergency action to allow the state’s so-called “cocaine mom” law to remain in effect while an appeal to a ruling striking it down as unconstitutional is pending.
The law permits the detention of pregnant women suspected of drug abuse but a judge in April ruled it was unconstitutionally vague. Not allowing the law to remain in effect could have “disastrous consequences,” Republican Attorney General Brad Schimel argued in the filing received by the Supreme Court on Tuesday.
Unless the Supreme Court takes action to allow the law to remain in effect, Schimel argued, “pregnant Wisconsin mothers and their unborn children are likely to suffer severe harms … ranging from needless death to being born with substance addiction and birth defects.”
Opponents of the law, including the American College of Obstetricians and Gynecologists, American Society of Addiction Medicine and American Public Health Association, argue it discourages pregnant women struggling with addiction from seeking prenatal care, is vague and overly punitive.
The law, passed in 1998, allows adult pregnant women suspected of drug or alcohol use that could affect their fetus to be held in custody and subjected to involuntary medical treatment. It is meant to provide protection for developing fetuses.
But U.S. District Judge James Peterson ruled it was unconstitutional, siding with a woman who was jailed for 18 days in 2015 after refusing to live at a treatment center.
Former Wisconsin resident Tammy Loertscher was 14 weeks pregnant and living in Medford 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 until she agreed to drug testing throughout her pregnancy.
In striking down the law, Peterson ruled 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.
Loertscher’s attorney Jeff Bowen said he was confident the Supreme Court would reject the request.
“There is no emergency,” Bowen said in an email. “The law violated the rights of Wisconsin women, and almost all of the services available to Wisconsin women remain available regardless of the injunction ordered by the district court.”
The 7th U.S. Circuit Court of Appeals denied Schimel’s request for an emergency stay last week. But the appeals court granted the state’s request for 25 women to continue receiving services under the law until the Supreme Court takes action.
Schimel urged the Supreme Court to allow the law to remain in effect because, he said, it’s helping those 25 women and “many” others who are receiving voluntary services, including housing, transportation and food.
“Yanking these services away from women who are accustomed to this help could well lead to disastrous consequences,” Schimel wrote.
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