5/19/2017 7:29:00 AM Social Services discusses unborn child abuse judgment decision
Abbey McEnroe/Lakeland Times
Director of Vilas County Social Services Kathryn Gardner, right, addresses the Vilas County Social Services board. Board members include chair Alden Bauman, Erv Teichmiller, Holly Tomlanovich, Bob Hanson and Tom Maulson.
Abbey McEnroe Lakeland Times reporter
Vilas County Social Services met Tuesday to discuss how the recent unborn child abuse judgment decision will affect the services they can provide and the actions they can take involving pregnant women.
On April 28, a federal court in Wisconsin ruled a state law allowing the detention, forced treatment and incarceration of pregnant women as unconstitutional.
The law, called the Unborn Child Protection Act, otherwise known as Wisconsin Act 292, was passed in 1997. This made the state responsible in protecting fetuses at all stages of pregnancy. The law allowed the courts to force pregnant women with any history of drug use into drug treatment and into jail if treatment was refused.
The judgment decision specifically stemmed from Tamara Loertscher's case out of Taylor County. As a result of the law, Loertscher was incarcerated and held in solitary confinement while pregnant.
According to the Mother Jones article "A Judge Struck Down the 'Cocaine Mom' Law That Put Pregnant Women in Jail," Loertscher sought medical care after finding out she was pregnant and disclosed to the medical staff she had a history of methamphetamine and marijuana use but stopped after she realized she was pregnant. The courts and child services got involved and Loertscher was subject to juvenile court hearings.
When she refused to participate in an intreatment drug program she was jailed for contempt of court. A lawyer was then appointed to her 14-week fetus while Loertscher herself was not given legal council. She spent about three weeks incarcerated in a Taylor County jail and received no prenatal care. She eventually agreed to go through an intreatment drug program and all of her drug tests came back negative. She gave birth to a healthy baby in 2015.
She sued Wisconsin and Taylor County in federal court for violating her civil rights in 2015.
On April 28 of this year, a Wisconsin federal court ruled the law was unconstitutionally vague.
"They felt it didn't quantify when harm happened to the fetus well enough," Vilas County Social Services director Kathryn Gardner said.
Gardner said since the judgment has taken place Social Services has been warned not to bring anything forward regarding unborn fetus protection.
"Because the summary judgment stated that it's unconstitutionally vague ... we've all been advised by our corp councils that we are not to bring anything forward regarding unborn fetus protection," Gardner explained.
However, Vilas County is unique in having the county and the tribe. The tribe is a sovereign entity, meaning their courts do not need to follow the judgment.
"The issues that we may have is this does not affect the tribe," Gardner stated. "The tribe is sovereign and ... their court can continue to do what they choose with respect to this now."
"How does this affect full faith and credit?" Gardner asked regarding the tribe. "If we're supposed to give full faith and credit to court orders and the court gives us an order against a pregnant woman on a UCHIPs (Unborn Child in Need of Protection Services), and they're requiring or asking for payment or looking for some sort of thing from us, what are we supposed to do?"
The Full Faith and Credit Clause, Article IV, Section 1 of the United States Constitution, says states within the United States have to respect the "public acts, records, and judicial proceedings of every other state."
In short, if the tribal courts rule against a pregnant woman on a UCHIP charge, Vilas County Social Services is put in a precarious position as they cannot even document it as a service report.
"Suffice to say, at this point we're kind of dead in the water on anything related to unborn CHIPS," Gardner said.
Gardner says the state plans on rewriting the statute, but there has been feedback regarding the science behind it.
"The state says they are planning on rewriting the statute, but there's a lot of feedback out there because this is such an imperfect science, and the fact that harm to the fetus relies on so many variables such as a woman's health, her genetics, her state of pregnancy, her weight - that in any given case you'd be hard pressed to kick that point..." Gardner explained.
"Even though the child when born is already addicted to the chemical the woman is using, that's not perceived as being a harmful activty?" board member Erv Teichmiller asked.
Gardner explained that birthing a child who is addicted to drugs or alcohol is not illegal in Wisconsin. However, after a child takes its first breath SS can intervene.
"Once the child takes their first breath then we have the ability, if it's a vulnerable child,and we get a report from the hospital that this is a vulnerable child, we have the ability to follow up," Gardner said. "Now we can't force services, we can't do anything at that point, we offer services that the child's going to need in order to mediate risk and then if the family does not have the supports in place to access those services or refuses to access those services then we could act."
Gardner said the law as it stands pushes women away from services that have the ability to help them and their unborn children.
"There's been a long, drawn-out, ongoing battle between doctors, and psychiatrists, and addiction specialists who have said that the law as it stands basically pushes women away from services, and that being the case, what would be more beneficial is to have a service system that women can access easily in-patient where they can bring their children, their existing children, without fear or risk that CPS is going to remove their children," Gardner explained.
The Menominee tribe's Maehnowesekiyah Wellness Center, a center dedicated to "alcohol, drug, mental health, adolescent, domestic violence treatment, education and support services," had provided drug and alcohol treatment to pregnant women in the past but now does not have the capacity.
Gardner expressed that, to her, treatment is a far better route than incarceration.
"To me, that is a better solution than to try and go the statutory route because whenever you do that, basically women go underground and ... then both their health and the health of the child is typically at risk," Gardner asserted. "So I see this as more of a service gap and a service issue and if we were able to provide the kind of services these women need, without fear of reprisal, we might be more successful and at least getting temperance during the period of time the woman is carrying, because then you've got doctors that can help mediate the situation, the addiction with medication that is allowable and not as harmful to the fetus."
Teichmiller conveyed that providing treatment instead of incarceration would require a change in law.
"Well that's going to be a change in the law to decriminalize chemical abuse and willingness on the part of people to start throwing some money at a treatment..." Teichmiller stated. "We have less and less money available for treatment and prevention."
Before the conversation began to repeat itself, chairman Alden Bauman stopped the discussion and told the board to put the item on the agenda for next meeting.
Abbey McEnroe may be reached via email at firstname.lastname@example.org.