Wednesday, March 7, 2018
Two of our contributing editors, Cynthia Soohoo and Risa Kaufman, have authored an important issue brief for the American Constitution Society, titled "A Human Rights Lens on Detention and Forced Medical Treatment of Pregnant Women."
The issue brief trains a human rights lens on Loertscher v. Anderson, pending in the 7th Circuit. The case challenges Wisconsin Act 292 that allows child protective services to take a pregnant woman into custody to protect her “unborn child,” from “the time of fertilization to the time of birth,” based on concern that the woman’s purported use of alcohol or controlled substances poses a “substantial risk” to the physical health of her “unborn child.” The authors conclude that international human rights law illuminates the fundamental rights violations resulting from Wisconsin Act 292 and state civil confinement laws targeting pregnant women suspected of substance use, and thus provides a useful perspective for courts and legislatures considering similar civil detention schemes.
Regardless of the outcome in the circuit, the case may ultimately head to the U.S. Supreme Court. The Supreme Court has already intervened in the matter once, to reinstate the law pending appeal after the lower court ruled the law unconstitutional. This was a rare move, particularly since BOTH the district court and the court of appeals refused to stay the opinion pending the outcome of the 7th circuit review. The ACS issue brief draws on a human rights amicus brief filed with the 7th Circuit Court of Appeals.