âCocaine Momâ Law. Perkins Coie joined forces with the National. Advocates for Pregnant Women and the. STEPPING UP.
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ST EPPI N G UP
Constitutional and Civil Rights Throughout our history, Perkins Coie has been recognized for bringing about systemic change during our fight to preserve and protect civil and constitutional rights. Our attorneys advocate on
“Cocaine mom” law challenger Tamara Loertscher continues her fight for the rights of pregnant women even after giving birth to a healthy baby boy.
behalf of individuals deprived of civil rights and civil liberties and the nonprofit organizations that serve them. We represent these clients on a wide range of issues before state courts up to the U.S. Supreme Court.
STEPPING UP FOR THE RIGHTS OF A PREGNANT WOMAN Suffering from depression and severe hypothyroidism in the winter of 2014, Wisconsin native Tamara Loertscher occasionally turned to methamphetamines and marijuana for self-medication, as she had no health insurance. ALTHOUGH TAMARA THOUGHT she was
unable to become pregnant, once the 30-year-old feared she might be, she stopped using drugs. She went to her county social services agency for a pregnancy test and potential prenatal care; the county referred her to a hospital emergency room. The ER tests revealed Tammy’s pregnancy, her severe thyroid condition and past drug use. Her medical records were turned over to local officials, who initiated child protection proceedings against her, and Tammy was sent to jail for 18 days. Wisconsin law allows the arrest and detainment of a woman if she is pregnant and allegedly “lacks self control” regarding
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drugs or alcohol. Wisconsin law also includes provisions in the children’s code that subject actions involving an “unborn child” in need of “protective services” to the same laws as children suffering domestic abuse. Judicial proceedings under this law occur in juvenile court and are conducted under seal and in strict confidence. Tammy had two juvenile court hearings and a “child maltreatment” determination by the local county authorities. The child welfare department appointed a guardian ad litem for the fetus, even though Tammy did not have her own legal representation. That guardian entered a guilty plea as to the allegations against Tammy on behalf of the fetus.
Tammy was ordered to undergo mandatory inpatient treatment and drug testing. Tammy refused, explaining that she was not an addict and had stopped using drugs. She was then jailed for contempt of court, during which time she was denied access to prenatal care. After finally agreeing to regular drug testing and supervision by social workers, Tammy was released from jail under a consent decree. Despite tests repeatedly showing that she was drug free, Tammy was subject to continuing testing and monitoring, and she had to grant full access to her medical information to the county. Tammy’s record also included the finding of child maltreatment, which could prevent her from being employed in her chosen field of nursing. Challenging the So-Called “Cocaine Mom” Law Perkins Coie joined forces with the National Advocates for Pregnant Women and the
Carr Center for Reproductive Justice at the NYU School of Law to file a civil rights lawsuit challenging the controversial Wisconsin law on behalf of Tammy. The lawsuit seeks a statewide injunction, arguing that the measure infringes on pregnant women’s fundamental rights to liberty and privacy, as well as damages for the injury to Tammy. Madison attorney Freya Bowen has been spearheading the firm’s efforts, and the Madison team includes attorneys David Harth, Jeff Bowen, Dave Pekarek Krone and Jesse Bair, as well as Lucas Morgan, Matt Maier, Brenda Horn and Lynne Bendt. The team’s early successes include getting the county to withdraw the child maltreatment finding and persuading the court to deny two successive motions to dismiss filed by the state defendants. Over the state’s objections, the court also unsealed the record of the juvenile court proceedings, which allowed Tammy to make her story public. The issue has gained media attention, including from Rolling Stone and The Atlantic. While the case is still in the courts, the consequences of Tammy’s challenge are potentially profound. Early records estimate more than 3,000 Wisconsin women have been under surveillance and investigation for “unborn child abuse.” Several other states have similar laws, although without Wisconsin’s tight secrecy and confidential proceedings. In January 2015, Tammy gave birth to a healthy baby boy; she enjoys being a loving parent as she awaits her case going to trial.
CONSTITUTIONAL AND CIVIL RIGHTS
