Tuesday, July 11, 2017
ABA Journal (July 7, 2017): Supreme Court allows Wisconsin to enforced fetal protection law pending appeal, by Debra Cassens Weiss:
Last week, the Supreme Court stayed a district court injunction of a Wisconsin fetal protection law. The challenged law gave courts jurisdiction over pregnant women who “habitually lack self-control” in the use of alcohol and drugs “to a severe degree,” creating a substantial risk to the health of the child. Justices Sotomayor and Ginsburg indicated that they would not have granted the stay.
The case was brought by Tamara Loertscher who was held in contempt and jailed for 18 days without prenatal care when she refused to report to a residential drug treatment center. Once Loertscher finally obtained a lawyer, she was able to negotiate an agreement that allowed her to stay at home if she agreed to undergo out patient drug treatment and testing. The subsequent tests were negative, and she gave birth to a health baby boy.
The district court found the statute unconstitutionally vague because the concepts "habitual lack of self-control" and "substantial risk to the physical health of the unborn child" are not "amenable to reasonably precise interpretation." An appeal to the 7th Circuit is pending with briefs due later this month.