Medical Associations Condemn Certain Fetal Protection Laws, Including in Wisconsin

Wednesday, December 7th, 2022 -- 12:00 PM

(By Phoebe Petrovic, Wisconsin Watch) Tamara Loertscher arrived at the Mayo Clinic Health System in Eau Claire, Wisconsin, on Aug. 1, 2014 despondent.

According to Phoebe Petrovic with Wisconsin Watch, the 29-year-old had suffered depression all her life, but in recent months, her mental health grew especially desperate. She struggled to eat and get out of bed, thinking of harming herself.

Severe hypothyroidism fueled her anguish. Untreated, it causes debilitating depression and fatigue. Loertscher had required daily medication since radiation treatment killed her thyroid. But she was unemployed and uninsured, and, facing a yearlong wait for BadgerCare, unable to afford the drugs.

When one home test, and then another, indicated Loertscher was pregnant, she went to Taylor County Department of Human Services, saying she needed treatment she could not afford for depression and hypothyroidism.

Workers directed Loertscher to the hospital’s emergency room where she voluntarily admitted herself to the behavioral health unit. Under "reason for admission," the medical records quoted Loertscher: "'I really needed help.'" An ultrasound showed a 14-week-old, healthy looking fetus.

When Loertscher heard the news, she cried with relief. After several days of reading and resting on the psychiatric ward, with newly prescribed thyroid medication, antidepressants, prenatal vitamins and supplements coursing through her system, Loertscher felt ready to leave.

But while she had checked herself in, she could not check herself out. The county had put a "hold" on her. The Taylor County Department of Human Services had issued a request for temporary physical custody under Wisconsin Act 292, dubbed the Unborn Child Protection Act.

Drug tests upon Loertscher’s arrival had shown "unconfirmed" positives for THC, methamphetamines and amphetamines. Later, the state would contend she knowingly used drugs and alcohol while pregnant; Loertscher would insist she stopped as soon as she learned of the pregnancy.

Today, 44 states and the District of Columbia have laws aiming to protect fetal development from drugs or alcohol. Wisconsin is one of just five states that allow civil detention for pregnant people accused of substance use.

Its legal proceedings take place out of public view, under seal, with a low standard of evidence and often a court-appointed attorney for the fetus, but none for the person gestating it. The law can require forced addiction treatment for the duration of pregnancy.

"The law is a means of allowing the (local health) department to begin working with pregnant individuals to help overcome challenges associated with various (alcohol or drug) concerns, limit the potential effects of continued use on the unborn child and receive necessary treatment and services to assist the individual towards recovery," says Kay Kiesling, Outagamie County’s Children, Youth and Families manager.

"This early intervention allows for a potentially safer environment for when the child is born." But every leading medical association that considered these laws has condemned a punitive approach, saying it harms more than it helps.

Pregnancy Justice, a legal advocacy group, says Wisconsin’s fetal protection law is the most "egregious" of the civil statutes in the country.

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