How involved should government be in women’s pregnancies? A case from Wisconsin speaks powerfully about the dangers of personhood policy.
Early in 2014, 29-year-old Wisconsin woman Tamara Loertscher left her job, leaving her without the health insurance she needed to treat a thyroid condition. During her unemployment Loertscher sometimes self-medicated with marijuana and methamphetamine, a stimulant, for depression and pain.
Months later, in July, Loertscher suspected she had become pregnant by her long term boyfriend. She discontinued all substance use.
Then she went to the Mayo Clinic in Eau Claire, Wisconsin, on August 1. She was seeking care for her depression and thyroid condition, to confirm her pregnancy, and to ask questions about the health of a fetus she intended to carry to term. She disclosed her medical history, including previous substance use, so health providers might offer the best information about her health and the fitness of her pregnancy. A urine test confirmed pregnancy as well as drug use.
Tamara Loertscher’s visit to the Wisconsin clinic then took a dark turn.
Jessica Mason Pieklo, a Senior Legal Analyst at RH Reality Check explains: “As hospital workers were preparing a prescription to treat Loertscher’s thyroid condition, they were also initiating unborn child protection proceedings on behalf of Loertscher’s then 14-week-old fetus.”
A hospital representative reported Loertscher to authorities in accordance with Act 292, Wisconsin’s “cocaine mom law,” enacted in 1997. It authorizes the state to provide “services to children and unborn children” . . . “which may require the expectant mother to be taken into custody” if she “suffers from a habitual lack of self-control in the use of alcohol beverages [or] controlled substances.”
Loertscher was detained by personnel at the Mayo Clinic overnight. She was harassed by social workers Jared Duellman and Corinna Everson to release her medical records to county services. Everson threatened Loertscher, saying Wisconsin would take her baby after birth and give it up for adoption. The Atlantic reports, “[She] was brought into a room at the hospital and told the judge was on the phone. She told the judge she didn’t want to speak without a lawyer present and left the room. The judge finished the hearing without her and ordered her to [drug addiction] treatment.”
Loertscher left the hospital against orders, and did not follow up about mandatory treatment. Ten days later, county officials, including Michael Schiffler, the lawyer appointed to Loertscher’s fetus, called for the court to take her into custody. She appeared in court on September 14, still without her own lawyer. She was then jailed for 17 days in contempt of court for not following previous orders.
While in jail, Loertscher missed prenatal medical appointments and dosages of her thyroid medicine. She was harassed by jail staff, who told her she had deformed her baby. They threatened to tase her. She was not allowed to see her regular doctor when she reported cramping. And she spent 36 hours in solitary confinement for refusing to take another urine test.
As Maya Dusenberry at Feministing points out, “One would think that when the state incarcerates a pregnant woman in order to ‘protect’ her fetus, they’d at least do everything they can to ensure a healthy pregnancy—that is literally the only supposed purpose of such a law, after all. You’d be wrong.”
Whatever the reasoning of lawmakers, we should not grant that the only purpose of “cocaine mom” laws is to ensure healthy pregnancies. The purpose of all laws is first to expand the power of the state. Personhood laws—laws extending rights to the pre-born—expand the power of the state to the most intimate micromanagement of women’s bodies.
Pro-life advocates might reply that personhood laws only apply to a defined subset of women: pregnant women. But the case of Tamara Loertscher elegantly demonstrates the fact that almost all women live with the possibility of becoming pregnant at any time. A physically mature, pre-menopausal woman can become pregnant from any single event of sexual intercourse, voluntary or not, and knowingly or not.
This case illustrates the point. Personhood laws give the government total, intimate, and ongoing control of all women. Personhood laws create a unique and perpetual vulnerability of women to the state.
The case of Loertscher also demonstrates the divergence of interests between a woman and a fetus she is carrying. The ideology behind much of pro-life advocacy holds that a woman’s interests are harmonious with even an unplanned pregnancy; that her health and happiness are congruent with bringing her embryo to term.
But Tamara Loertscher was seeking out her own, reasonable solutions for dealing with pain, stress, medical issues, and mental health problems. Even though she chose to accept her pregnancy after learning about it, behaviors she chose in her own interest were potentially against the continuation of her pregnancy. Authorities who compel a woman to nurture a pregnancy are subjugating her freedom to pursue her own self interest.
Controlled substance laws and the drug wars create an elevated social stigma against the marijuana and methamphetamines that Loertscher took. But what about other, legal substances she might have ingested that are speculatively harmful to a pregnancy?
Personhood laws give the government total control of all women.
We already know the dangers of smoking and alcohol. What if Loertscher had ingested shellfish, raw eggs, raw milk, soft cheeses, hot dogs, lots of caffeine, or Vitamin A? What about prescription drugs like sleeping pills or blood thinners?
What about activities that are dangerous to a pregnancy such as sitting in a sauna, running, bicycling, horseback riding, or scuba diving? Should we imprison women who threaten their pregnancies in these ways?
A sexually active woman can unknowingly become pregnant at any time. The logic of personhood laws should forbid all women from taking these substances or participating in these activities, so as to prevent her from unknowingly harming her new child.
Personhood laws treat women’s bodies not as their own, but as objects: incubators and environments for a separate being. They redirect the purpose of a woman’s life away from her volition and submit her to her reproductive function. She becomes defined by her biology; by her sex. It is the very definition of sexism.
Unlike hundreds of pregnant women who have been arrested and abused under “cocaine mom” laws, Tamara Loertscher fought back. In December 2014, she filed a lawsuit against the Wisconsin attorney general J.B. Van Hollen and the Department of Children and Families, to overturn Act 292 as unconstitutional. Loertscher is represented by the Perkins Coie law firm in Madison and supported by the Reproductive Justice Clinic at NYU Law School and the National Advocates for Pregnant Women (NAPW).
In September of this year, 2015, the United States District Court for the Western District of Wisconsin announced it had denied the state’s motion to throw out the case. Now, Loertscher’s case will go to trial.
There is some hope that ruling “cocaine mom” laws unconstitutional will mitigate their damage. But use of more centralized power often creates a conservative backlash, much like the one against Roe v. Wade which continues today. Personhood laws emerge in various forms and in various states. The best way to mitigate their harm to women’s freedom is to recognize and resist them from the start.
Women like Loertscher need the freedom to take care of themselves and trade freely with others. Women should be able to seek out their own group or individual health care, with plans that best fit their own contexts. They must to be able to purchase the products they need in free markets without appealing to authorities such as the government, doctors, or pharmacists. They must be able to tend to their own health needs, and obtain whatever services or substances they believe are best.
A woman’s body is her own physical existence—she is the moral priority. The continuity of her status should not be affected by pregnancy. She must be free to create the optimal conditions of her own life.
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Click here for a list of resources and media on Tamara Loertscher’s case.