A federal judge has denied the state's request to throw out a lawsuit challenging the constitutionality of the state's "cocaine mom" law that allows pregnant women to be locked up if they test positive for illegal drugs.
The suit, filed by Tamara Loertscher, alleges that she was not provided prenatal care during the 18 days she was jailed in Taylor County and that she was thrown into solitary confinement for refusing to take a urine test to confirm her already established pregnancy.
State Attorney General Brad Schimel, who already failed one attempt to get the case against the state and Taylor County thrown out, lost again. Schimel argued that Loertscher's case was moot because she moved out of state and no longer was subject to the statute, but US District Judge James D. Peterson disagreed.
The law continues to affect other women, "allegedly hundreds every year," he wrote in his decision. "
"Accordingly, the case attacks an ongoing policy that 'has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties,'" he wrote, quoting a relevant 7th Circuit Court of Appeals decision.
"The state defendants apparently stand ready to enforce (the law) across the state, but the proceedings are still shrouded in confidentiality, making it difficult to determine the extent of enforcement," Peterson said, concluding: "The issues in this case are still very much alive."
Peterson did dismiss some individual defendants from the case, ruling the law gave them immunity.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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