By Margo Kirchner
The recent challenge to Wisconsin’s "cocaine mom" statute that allows pregnant women to be locked up failed this week because the plaintiff moved out of state.
The U.S. Court of Appeals for the Seventh Circuit ordered Tamara Loertscher’s challenge dismissed because she no longer is subject to the Wisconsin law and therefore cannot challenge its constitutionality. Loertscher was jailed without a lawyer after she told hospital staff that before learning of her pregnancy she used marijuana and methamphetamines to deal with medically induced depression and fatigue.
Loertscher lived in Wisconsin when she filed her case in late 2014. She later moved out of state.
U.S. District Judge James Peterson found that the move did not impact Loertscher’s claims and held the "cocaine mom" law unconstitutional for failing to give women fair warning about what conduct is prohibited and failing to provide authorities any meaningful standard for enforcement. Peterson blocked the law, but the U.S. Supreme Court stayed that order while Wisconsin Attorney General Brad Schimel appealed to the Seventh Circuit.
The appeals court, in a decision written by Senior Circuit Judge Kenneth F. Ripple, vacated Peterson’s order, but not based on the merits of Loertscher’s challenge. Instead, the Seventh Circuit disagreed with Peterson about the impact of Loertscher’s move. The court pointed to a constitutional provision limiting federal courts to deciding “actual, ongoing controversies.” The existence of a controversy when a case is filed is not enough; the issue must remain live and the parties must retain a personal interest in the outcome throughout the case, even on appeal.
Because Loertscher moved out of state during the case she no longer needs protection from the law, said the court. And in cases seeking to block enforcement of a statute, “once the threat of the act sought to be enjoined dissipates, the suit must be dismissed as moot.”
Ripple was joined in his opinion by Circuit Judges Joel M. Flaum and Daniel A. Manion.
The panel noted the lack of any evidence showing that Loertscher moved due to the statute or fear of its application to her.
According to the court, Loertscher’s case did not fall into a limited exception to the mootness rule for cases that are “capable of repetition, yet evading review.” The exception applies in rare situations when (1) a challenged action is too short to be fully litigated prior to its cessation and (2) a reasonable expectation exists that the same complaining party will be subject to the action again. In Roe v. Wade the Supreme Court said that pregnancy is a classic justification for the exception.
But the Seventh Circuit found that Loertscher cannot satisfy the second part of the exception because her voluntary and permanent departure from Wisconsin “makes the possibility of her once again being subject to the statute a matter of pure speculation.” Loertscher has no reasonable expectation that she will find herself within Wisconsin’s borders when she is both pregnant and using drugs, the panel said.
The court likened Loertscher’s case to that of two doctors who challenged Michigan’s physician-assisted suicide ban. The Sixth Circuit Court of Appeals dismissed the doctors’ case as moot when one doctor retired and the other moved from Michigan to California.
Her voluntary departure from the state “makes the possibility of her once again being subject to the statute a matter of pure speculation.”
WJI reported details of Loertscher’s case and the "cocaine mom" law previously. After Loertscher acknowledged her past drug use to hospital staff, the hospital reported Loertscher to the Taylor County Department of Human Services, claiming that her behavior with drugs put her fetus in serious danger. Taylor County appointed a lawyer to represent Loertscher’s fetus (but not Loertscher) and began proceedings under the "cocaine mom" law to determine whether Loertscher’s fetus needed protection or services.
Loertscher refused to participate in a quickly scheduled temporary physical custody hearing unless she had legal representation. The court conducted the hearing without her and ordered that she submit to an assessment and possible treatment for drug abuse. When Loertscher refused to comply with the order, the court held her in contempt and in jail for 18 days, during which time Loertscher received no prenatal care even after asking to see a doctor.
Loertscher on her own contacted an attorney and secured appointment of a public defender. She obtained release only after agreeing to an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative and Loertscher delivered a healthy baby in January 2015.
While pregnant, Loertscher sued the state, alleging that the "cocaine mom" law is unconstitutional and cannot be enforced. Judge Peterson agreed on the merits, but his decision no longer has any effect after the Seventh Circuit’s decision on appeal.
Loertscher’s suit is the second unsuccessful attempt to overturn the law through litigation. A prior plaintiff also lost her case on procedural grounds.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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