Boots & Sabers

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0926, 03 Jan 15

Challenge to Cocaine Mom Statute

This is a tough case.

For the second time, a pregnant Wisconsin woman has challenged a state law that landed her in jail after she admitted to past drug use while seeking prenatal care.

Tamara Loertscher, 30, of Medford was jailed in Taylor County for 18 days — including three in solitary confinement — after a judge found her in contempt for refusing to move to a residential treatment center, according to the federal civil rights lawsuit she filed in Madison.

The lawsuit claims Wisconsin’s so-called cocaine mom statute — meant to provide protection for developing fetuses — is unconstitutional, and seeks an injunction against its further use.

The 1998 law lets adult pregnant women suspected of current or past drug or alcohol use that could affect their fetus be held in secure custody and subjected to medical treatment involuntarily. Social workers can initiate confidential legal action in children’s court; lawyers get appointed for a woman’s fetus.

On the one hand, the law is good in that it is trying to protect the baby from harm when his/her mom abuses drugs. The long-term harm caused by mothers using drugs is well documented and quite severe. It is within society’s interest to protect those children just like it would be if they were 2-year-olds being neglected and abused by a drug-addled parent.

On the other hand, the mother has rights too. This is a law that should not be used lightly. In my opinion, it should only be used when the mother has a history of drug use and it is reasonable to assume, or can’t reasonable exclude the likelihood, that she is continuing to use drugs while pregnant.

According to the story, in this case the mom admitted to using meth and it showed up in her system during a urine test. The woman claims that she used meth from late winter until late July when she thought she was pregnant. The urine test was on August 1st. According to this site, meth only stays in one’s urine for 3 to 5 days after use. The fact that it was present verified that she had recently used meth.

So at this point, we have a woman who admitted using meth regularly for at least 6 months. Meth is highly addictive. The test indicated that she had used meth within the previous week. She was not in any treatment program and her only assurance that she would not take meth again was her assurance that she would quite. With all of these circumstances, it was reasonable for the state to ask more questions and require her to undergo addiction treatment and ongoing tests to protect the safety of the child.

From there, the state escalated their actions because she was uncooperative. She refused treatment and further tests, so the state incarcerated her. From the state’s point of view, they have an obligation under the law to protect the child. This woman was an admitted meth head who refused treatment or testing. I believe the state was justified in their action.

Of course, these are all going to be hard cases. They deal with very serious life issues at a time when the mother and baby are going through an extremely stressful time together. And the critics of this law are right in that the presence of the law may deter some women from admitting to drug use and seeking proper prenatal care. But on the whole, it is a good law and was used appropriately in this case.


0926, 03 January 2015


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