The Detention and Forced Medical Treatment of Pregnant Women: A Human Rights Perspective
Date:  03-23-2018

Report finds civil commitment laws that detain pregnant women restrict a woman's right to liberty, privacy, personal autonomy, and non-discrimination
From American Constitution Society for Law and Policy:

On October 26, 2017, the Seventh Circuit heard oral argument in Loertscher v. Anderson,1 a case that asks how far a state can go in restricting a woman’s constitutional rights under the guise of protecting the fetus that she carries. The case challenges a Wisconsin law that allows the state to take a pregnant woman into the custody of child protective services in order to protect her “unborn child,”2 from “the time of fertilization to the time of birth,” based on a concern that the threat of the woman’s future use of alcohol or controlled substances poses a “substantial risk” to the physical health of the “unborn child.”3 Wisconsin’s law is unique in that it places a woman in the custody of child protective services. Several other states allow or promote similar use of their civil commitment laws to detain pregnant women.4 And a county prosecutor in Montana recently announced a “crackdown policy,” pledging civil prosecution and incarceration of pregnant women suspected of non-medically proscribed use of drugs or alcohol.5

The Loertscher case came to the Seventh Circuit after the District Court granted summary judgment to plaintiff Tamara Loertscher, finding the Wisconsin statute void on vagueness grounds, and enjoined enforcement of the law.6 In addition to vagueness, Loertscher raised substantive and procedural due process, First and Fourth Amendment, and equal protection claims. The District Court recognized that the statute implicated the constitutional rights to be free from physical restraint and coerced medical treatment,7 but rested its holding solely on vagueness grounds and did not reach “the other difficult constitutional questions.”8 The District Court denied a motion to stay the injunction pending appeal,9 but in July 2017, the U.S. Supreme Court granted Wisconsin’s application to stay enforcement of the injunction pending the Seventh Circuit’s review.10 Continue reading >>>