Fresh from unsuccessfully arguing that requiring abortion doctors to have hospital admission privileges protects women's health, Wisconsin State Attorney General Brad Schimel now must defend a law that, according to a lawsuit, resulted in a pregnant woman being jailed for almost three weeks without prenatal care.
The suit, filed by Tamara Loertscher, challenges the constitutionality of the state's "cocaine mom" law that allows pregnant women to be locked up if they test positive for illegal drugs. Loertscher says in her amended complaint that she was not provided prenatal care during the 18 days she was jailed in Taylor County and that a "jail doctor" told her that "if your body decides to abort, there’s nothing we can do about it.”
Loertscher also says she was thrown into solitary confinement for refusing to take a urine test to confirm her already established pregnancy.
"The solitary confinement cell was a room without windows containing only a toilet and a metal bed frame," the complaint says. "The room was cold and filthy. The floor, walls, and toilet area had hair and feces on them, and there were fingernails visible beneath the mattress frame. There was no mattress on the bed. Ms. Loertscher was given only a roll of toilet paper. A guard provided a thin mattress and blanket in the evening and another guard took these away first thing in the morning. Ms. Loertscher remained in this cell for approximately 36 hours."
So, in front of the 7th Circuit Court of Appeals, a woman's life is important, but in the Taylor County Jail, not so much. It will be really interesting to see how Schimel reconciles his arguments in those two cases. The state has asked that the case be dismissed, a request denied by District Judge James D. Peterson once before.
Here is the full complaint in the Loertscher case, filed in federal court in the Western District of Wisconsin.
Excerpts from the 7th Circuit Court of Appeals ruling that Wisconsin's requirement that doctors who perform abortions have hospital admitting privileges.
Although signed into law on a Friday (July 5, 2013), Wisconsin’s statute required compliance—the possession, by every doctor who performs abortions, of admitting privileges at a hospital within a 30-mile radius of each clinic at which the doctor performs abortions—by the following Sunday (July 7, 2013)....There was no way an abortion doctor, or any other type of doctor for that matter, could obtain admitting privileges so quickly, and there wouldn’t have been a way even if the two days hadn’t been weekend days...
The state tells us that “there is no evidence the [Wisconsin] Legislature knew...physicians would be unable to comply with the Act.” That insults the legislators’ intelligence....
As it happens, complications from an abortion are both rare and rarely dangerous—a fact that further attenuates the need for abortion doctors to have admitting privileges....
No documentation of a medical need for requiring abortion doctors to obtain admitting privileges had been presented to the Wisconsin legislature when it was deliberating on the bill that became the statute challenged in this case. The only medical evidence that had been submitted to the legislature had come from a doctor representing the Wisconsin Medical Society— and she opposed requiring that abortion doctors obtain admitting privileges. The only testimony presented to the legislature that admitting privileges are important to continuity of care was presented by a representative of Wisconsin Right to Life who happens not to be a doctor....
Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority....
A great many Americans, including a number of judges, legislators, governors, and civil servants, are passionately opposed to abortion—as they are entitled to be. But persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them. They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.
Wisconsin's female incarceration rate of 112 per 100,000 women ranks it above El Salvador where, as a new report puts it, "abortion is illegal and women are routinely jailed for having miscarriages."
Only Thailand has a higher female incarceration rate (130) than the United States (127).
"In the U.S., we are not only incarcerating women far more than nearly all other nations, but we are also incarcerating women far more than we have done in the recent past," according to the report, States of Women's Incarceration: The Global Context. "The sudden growth of incarceration in our country has been staggering; our incarceration rate nearly tripled between 1980 and 1990."
Sentencing reform? What sentencing reform? Wisconsin was a leader last year in sending more people to prison than it let out.
Source: Bureau of Justice Statistics Prisoners in 2014.
Prison contractor suspected of violating attorney-client privilege serves dozens of Wisconsin state, local lockups
Securus, a prison and jail phone service provider under scrutiny for large-scale violations of attorney-client privilege, is a major player in the Wisconsin corrections industry, according to the firm's own website.
The Dallas-based firm was the target of a hack that revealed the records of more than 70 million phone calls, according to The Intercept, the website that broke the story.
"Particularly notable within the vast trove of phone records are what appear to be at least 14,000 recorded conversations between inmates and attorneys, a strong indication that at least some of the recordings are likely confidential and privileged legal communications — calls that never should have been recorded in the first place," The Intercept reported.
It quoted David Fathi, director of the ACLU’s National Prison Project: “This may be the most massive breach of the attorney-client privilege in modern U.S. history, and that’s certainly something to be concerned about.”
Securus' list of Wisconsin clients is extensive and includes about 80 jails, sheriff's departments, and state prisons and correctional facilities. The full list is available here.
U.S. District Judge Rudolph T. Randa got both the law and the facts wrong in the widely publicized Pizza Man arson trial, a federal appeals panel ruled Monday.
The panel sent the case back to federal court in Milwaukee for reconsideration.
The 7th Circuit Court of Appeals opinion was written by Judge Ann Claire Williams; other members of the panel were judges Diane P. Wood and Daniel A. Manion.
Randa sentenced Rahman to 30 months in prison for providing false statements to the government, but allowed him to remain free pending appeal.
The landmark east side Pizza Man restaurant burned down -- along with the Black & White Cafe, Grecian Delight, Cush Lounge and 10 apartment units -- in January 2010.
Rahman was the owner of the Black & White Cafe. The prosecution alleged that Rahman set the fire so he could get out of the cafe business to concentrate on other ventures.
The Appeals Court, in remanding the case, cited numerous errors committed by investigators and Randa.
Investigators exceeded the scope of a consent form Rahman signed that allowed them to search the cafe "to determine the origin and cause of the fire." A subsequent search of the building's basement "violated Rahman's Fourth Amendment rights, and that certain pieces of evidence collected in the basement as a result of the search should have been suppressed," Williams wrote. Rahman never agreed to allow investigators to search the basement, which they already knew was not the site of the fire's origin, for evidence of criminality. That search should have been conducted with a criminal search warrant, the panel said.
"Although the government argues that a lay person could possibly think that the term 'origin and cause' included arson, we do not think it wise to allow the government to benefit from a layperson's misconception of a phrase with legal significance," Williams said.
Investigators failed to determine whether a laptop containing business records Rahman told investigators was in the cafe was the red Gateway laptop with no business records they later found at his home. The government contended finding the laptop at home meant Rahman was lying about there being one at the cafe, but did nothing to determine whether Rahman had a second computer.
"The identity of the laptop to which Rahman was referring could have been cleared up by a single additional question...It was not at all unlikely that Rahman would have more than one computer between work and home, yet the government pinned its case on the laptop in Rahman’s statement being the red Gateway," the appeals panel said.
Finally, the panel said, Randa got the facts wrong when he found Rahman responsible for the fire. "The judge stated that the only way it (a back door) could have been unlocked was with a key, and since only Rahman had a key, that meant only Rahman, or someone at his direction, set the fire," the panel said. Evidence showed, however, that the door could be unlocked from one side without a key.
That error entitles Rahman to resentencing if the case gets that far again, the panel said.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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