"I was trying to do the right thing to take care of my pregnancy," said mom-to-be Tamara Loertscher. "I was really sick when I went to get help, but I feel like asking for help just made everything worse."
Loertscher, 30, had been using meth before finding out about her pregnancy. But upon realizing she might be pregnant, Loertscher—who did not have health insurance—says she quit using the drug and sought care from Taylor County social services. For her efforts, she was subjected to a temporary custody order requiring her to move into a residential treatment center and, when she refused, jailed for 18 days.
Loertscher is now challenging the Wisconsin law allowing pregnant women to be jailed or put in protective custody for current or past drug or alcohol use.
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 ordered Loertscher to supply a blood sample, which she refused, and doctors at the clinic released her. But 10 days later, she was ordered into state custody.
On Sept. 14, Loertscher appeared in court without a lawyer. A judge ordered her jailed on contempt for not following the earlier orders. 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.
All of Loertscher's drug tests have been negative. Nonetheless, the county human services department made an administrative finding against Loertscher for child maltreatment, based on her initial positive drug test. Loertscher is appealing that finding.
She's also brought a federal lawsuit against the Wisconsin attorney general and the state Department of Children and Families. "From our perspective, the entire proceeding was a violation of constitutional rights from start to finish," Loertscher's attorney, Freya Bowen, said.
In the suit, Loertscher alleges that the Wisconsin statute which allowed her to be locked up is unconstitutional and seeks an injunction against its further use. The law, passed in 1998, allows the state to order pregnant women into protective custody and medical treatment if they're suspected of current or past drug or alcohol use. "Social workers can initiate confidential legal action in children's court," explains the Milwaukee Sentinel Journal, and "lawyers get appointed for a woman's fetus."
Loertscher's suit is aided by the National Advocates for Pregnant Women, who last year helped get charges against another pregnant Wisconsin resident dropped after she was ordered to take an anti-addiction drug and, upon refusal, forced into residential drug treatment for two-and-a-half months.
Critics of laws like Wisconsin's claim they violate women's civil liberties and medical confidentiality while also driving up the likelihood of harm to fetuses, since moms-to-be will be less likely to seek drug treatment and/or prenatal care if they know it could land them in state custody. Reason TV explores a similar Tennessee statute here: