Blog Post

Federal Court Strikes Down 90's Era "Cocaine Mom" Law Targeting Pregnant Women as Unconstitutional

Jolene Forman

In his first 100 days in office, Trump has pushed for a return to the ineffective drug war policies of the 1980s and 90s. He has advocated for more aggressive policing, higher mandatory minimum sentences for drug offenses as a response to the opioid epidemic, and a border wall to purportedly stop “drugs from pouring into our country and poisoning our youth.” For over 45 years, the war on drugs has demonstrated that such draconian policies have failed. Rather than encouraging users to seek treatment and medical interventions as needed, these harsh laws drive use underground.

Last Friday, a federal court in Wisconsin struck down one such outmoded drug war law from 1997: Act 292, commonly referred to as Wisconsin’s “Cocaine Mom” statute. The law allowed the state to seize control of women and detain them in jail or other locked facilities. The law further allowed the state to force pregnant women into inappropriate treatment without their consent if they use – or even disclose past use of – any amount of alcohol or a controlled substance. The Court ruled that Act 292 is unconstitutional and immediately stopped enforcement of the law statewide.

Plaintiff Tamara Loertscher – represented by National Advocates for Pregnant Women (NAPW), the NYU School of Law Reproductive Justice Clinic, and the Perkins Coie law firm – sued the State of Wisconsin and Taylor County after medical staff and state actors transformed her efforts to obtain needed medical care into the basis for forced, unnecessary treatment and incarceration.

The Drug Policy Alliance filed a friend of the court (amicus) brief on behalf of the American College of Obstetricians and Gynecologists (ACOG), American Society of Addiction Medicine, and American Public Health Association in support of striking down the law.

Dr. Kathy Hartke, chair of the Wisconsin ACOG commented, “This is a victory for the people of Wisconsin, public health, and for everyone who cares about the health of pregnant women and their babies.” She explained, “For the first time in 19 years, Wisconsin women who become pregnant and seek medical help can do so without fear that their confidentiality will be violated and their health and their baby’s health undermined by forced treatment and punishment based on medical misinformation and stigma.”

The Court concluded that the Act is vague in violation of the U.S. Constitution’s guarantee of due process of law, explaining it “affords neither fair warning as to the conduct it prohibits nor reasonably precise standard for its enforcement.” The court concluded that given the vagueness of the law, “erratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers, is all but ensured.”

Ms. Loertscher’s own experience confirmed this conclusion. As a result of seeking health care and what the court described as “her commitment to having a healthy baby and to take care of herself” she was subjected to forced treatment and incarceration.

Ms. Loertscher, 29 at the time of the proceeding gave birth to a healthy baby who is now a thriving 2-year-old. She and her family felt driven out of Wisconsin as a result of the government’s actions, and now live in another state.

Others subjected to similarly harsh drug laws, are left with more visible scars. Despite dedicating billions of dollars annually to fighting the war on drugs, U.S. drug addiction rates have remained stable and U.S. drug use rates have steadily remained among the highest in the world.

Instead of pursuing outdated and infective 80s and 90s policies, Trump should learn from our past failures and support policies that make it easier, not harder, to access necessary health interventions.

Jolene Forman is a staff attorney with the Drug Policy Alliance.

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