Undue Burden

States Slap Pregnant Women With Harsher Jail Sentences

States like Wisconsin and Tennessee are handing down stiff jail time to mothers-to-be caught with drugs—far harsher penalties than for men caught in the same situation.

12.12.14 10:45 AM ET

Tamara Loertscher went to the Eau Claire Mayo Clinic in early August when she thought she was pregnant. The 30-year-old wanted to know for sure, but she also knew she needed help for the many other medical problems that had gone untreated since losing her insurance. Without insurance, she couldn’t pay for the medicine for the hypothyroidism she had suffered from since she was a teenager. On top of that, Loertscher struggled with depression. “I wanted to go for the health of my baby,” she says. According to Loertscher and her attorneys, that clinic visit would lead to her being locked up in jail, placed in solitary confinement, and threatened with a taser, all during the first months of her pregnancy.

Tests at the clinic proved what she suspected: she was pregnant. Tests also showed that Loertscher had recently taken methamphetamines and marijuana. She freely admits that she was using both to self-medicate after she lost her insurance. However, Loertscher says she stopped using the drugs as soon as she suspected she was pregnant, even before the clinic confirmed it.

The State of Wisconsin didn’t care. Her lawyers say Loertscher’s medical records were handed over to the state without her consent. “Less than a week after I was released [from the clinic], I was served with papers. Then a police officer came to my house and said there was a warrant for my arrest,” said Loertscher during a phone conference with the National Advocates for Pregnant Women on Thursday.  

She was sentenced to 30 days in jail after she refused a court-ordered drug treatment. “The treatment they wanted me to go through basically sounded like incarceration. I wasn’t going to be allowed to leave,” Loertscher said, noting the court did not specify how long the forced treatment would last. After agreeing to regular drug testing, she ended up serving 17 days in jail, but she says during that time she was denied visits to her obstetrician and kept off her hypothyroid medicine for nearly two days. The only physician she was permitted to see was the jail doctor. “She told me that if I decided to miscarry, there was nothing they could do about it.”

“When I was incarcerated, they immediately started harassing me. They all just thought I was this horrible person,” Leotscher recalled “I was put in solitary confinement and threatened to be tased because I wouldn’t take a pregnancy test,” says Loertscher, a request that struck her as odd considering she was jailed specifically for being pregnant while testing positive for drugs.

Loertscher was arrested under a 1997 Wisconsin law, which claims to protect “unborn children who are at substantial risk of serious physical injury due to the habitual lack of self-control of their expectant mothers in the use of alcohol beverages, controlled substances or controlled substance analogs.” The NAPW is helping Loertscher to file a federal lawsuit claiming her Constitutional rights were violated.

Loertscher is hardly the only U.S. woman who has faced imprisonment for acts that would not have warranted charges, or at least ones so severe, if she weren’t pregnant. Both state and federal rulings have imposed additional punishments on women by dint of the fact they were pregnant.

There are 17 states with laws that consider drug abuse during pregnancy a form of child abuse. Tennessee passed a law that allowed for criminal charges to be brought against pregnant women found to be taking illegal drugs. South Carolina and Alabama courts have already ruled late-pregnancy substance abuse can be considered a form of child abuse. Minnesota, South Dakota, and Loertscher’s Wisconsin consider the presence of drugs in a pregnant woman grounds for civil commitment and forced rehabilitation.

The National Advocates for Pregnant Women, which has taken up Loertscher’s case, authored a peer-review study that found “413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty.” The organization has identified 380 additional cases since 2005.

In July, Lacey Weld, 27, was sentenced to 151 months in prison by a Tennessee federal judge for her involvement in a meth manufacturing operation. Six of those over 12 years in prison were part of enhanced sentence due to the fact she was pregnant at the time. U.S. District Judge Thomas Varlan ruled “the enhancement for creating a substantial risk of harm to a minor… was justified due to her [Weld’s] using and manufacturing meth while pregnant.”

The constitutional problem with this ruling, experts say, is that it places an extra burden on women for being pregnant. In Weld’s case, none of the men involved in the meth operation faced the sentencing enhancement, according to the amicus brief filed this week by the NAPW and several other groups and individuals to support her appeal. To the NAPW and other women’s advocates, the enhanced sentencing and other criminal penalties specifically against pregnant women constitute a form of sex-based discrimination that violates the 14th Amendment. The amicus brief states that:

“By considering Ms. Weld’s drug use in the sentencing hearing, the district court subjected her to an additional punishment that a male drug user will never—and as far as amici have found, has never—faced. In doing so, this decision effectively criminalized drug use for one class of person: pregnant women”

Not only does Weld’s sentence enhancement potentially violate the rights of pregnant women, but it is based on an inaccuracy. The Justice Department’s release on Weld’s sentencing quoted U.S. Attorney William C. Killian, who cited the “tragic rise in the number of babies born addicted to drugs” as support for her enhanced setting.

The thing is, Weld’s baby wasn’t born addicted to methamphetamines, according to Kylee Sunderlin of NAPW. Weld’s baby was born with Neonatal Abstinence Syndrome (NAS), which is often wrongly considered a form of drug addiction with permanent damaging consequences. Not only is NAS “a treatable and transitory condition that ahs not been associated with any long-term effect,” as the amicus brief notes, but it results from prenatal exposure to opioids—not the methamphetamine exposure alleged in the ruling and sentencing against Weld.

Even though medical experts testify that NAS does not have long-term health effects on infants, some states track the diagnoses and use it as a way to convict mothers of child abuse. “Tennessee is the first state to legislatively enact criminal penalties, but five states requires diagnoses of NAS to be reported to the Department of Health,” says Kylee Sunderlin. Those states include Florida, Indiana, Kentucky, Ohio, and Tennessee. “Gathering data is seemingly okay. But we saw in Tennessee that legislators used that data and said ‘Look at all these cases of NAS. We need to do something about them.’”

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Sunderlin describes the current fears around NAS as analogous to the crack baby hysteria of the late 1980s, which has since been exposed as highly overblown. According to Sunderlin, around 1990, a number of legislative proposals were launched to add additional penalties on pregnant women who use illegal substances, in response to the “crack baby” fears. While those state proposals largely failed, new legislation has been couched in similar fears. “The crack baby myth is being recapitulated in terms of NAS,” Sunderlin said.

What’s more, several doctors—along with the National Perinatal Association and Physicians for Reproductive Health—signed onto the amicus brief filed on behalf of Weld’s appeal against the enhanced sentencing. The American College of Obstetrics and Gynecology opposes substance abuse policies that impose extra penalties on pregnant women: “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus. Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.”

These laws and criminal penalties may ultimately discourage pregnant women from seeking help for addictions or even basic medical care. Some pro-life groups worry that they discourage women from staying pregnant altogether.

At their core, these laws subsume women’s rights in favor of those granted to their weeks-old fetuses. Case in point: when Loertscher was brought to court in Wisconsin, her 14-week-old fetus was granted a lawyer, but she was not.

Loertscher says her saga with the law didn’t end once she was released from prison in September. By the end of the month, Taylor County officials notified Loertscher that she was being accused of child maltreatment for using methamphetamine and marijuana when she was not aware she was pregnant. If the state finds that Loertscher abused her fetus, it would prevent her from ever returning to her profession as a nurse’s aid, says the NAPW.

Even if Loertscher eventually achieves legal redemption, she says the damage has already been done. “This all happened in a small community, so everyone knows,” says Loertscher. “People have opinions of you. That doesn’t change. My family will have to relocate.”