Court Overturns Ruling Calling for Protection of At-Risk Unborn

The Wisconsin Supreme Court announced on Tuesday that it is the state Legislature’s role to decide whether a county can take custody of a fetus if child-protection officials determine that the pregnant woman carrying the unborn baby is endangering its health.

The court, in a 4-3 decision, overruled an appellate court that had upheld Waukesha County’s actions in ordering a fetus of 36 weeks’ gestation--along, of course, with its mother--to be confined to an inpatient drug treatment program. A juvenile court judge in Waukesha, a western suburb of Milwaukee, had ruled that Angela M.W., as she was identified in court proceedings, was harming the fetus with her continued cocaine use. The woman, although not charged with any crime, was forced to stay at the rehabilitation center for three weeks, until she gave birth to a baby boy.

The case caused an uproar among feminists, public health professionals, law enforcement and civil libertarians, forcing a debate over the state’s interest in a pregnant woman’s behavior.

Robin Shellow, attorney for Angela M.W., called Tuesday’s ruling “terrific.”

But William Domina, Waukesha County corporation counsel, said the matter was not closed. Domina said that a state senator expressed interest in sponsoring a bill that would specifically grant juvenile courts jurisdiction over viable fetuses. He said he might also ask the state Supreme Court to reconsider the decision because of the sharp divisions on the bench.

The appeals court had concluded that Roe vs. Wade, the landmark U.S. Supreme Court decision that legalized abortion but also allowed states to enact restrictions in the later trimesters, set a precedent that permits the Legislature to expand the definition of a child in need of protection to include a viable fetus.

But the state Supreme Court, in a majority opinion written by Justice Ann Walsh Bradley, said the appellate court replied to “a distinctly different” issue than the one posed by the case before it.

Bradley wrote that, whether it had the right to or not, the Legislature never meant to include fetuses in the law covering abused and neglected juveniles. “We do not reach the question answered by the court of appeals,” she wrote.

Such a decision would be “bristling with important social policy issues,” Bradley wrote. “We determine that the Legislature is in a better position than the courts to gather, weigh and reconcile the competing policy proposals addressed to this sensitive area of the law.”

A dissent written by Justice N. Patrick Crooks argued that the Legislature must have agreed with the appellate court decision because it did not express disapproval. The Legislature, he noted, did discuss the state Children’s Code during the last session.