Wisconsin OKs Civil Detention for Fetal Abuse

The Wisconsin Legislature passed a law Friday that will allow authorities to protect fetuses by detaining pregnant women who abuse drugs or alcohol.

The move, following similar action by the South Dakota Legislature, signaled that the fetal-protection movement, which largely failed in the courts over the last 15 years, is finding a more receptive audience in statehouses.

The measure, which received final approval from Wisconsin’s Senate after passing the Assembly in November, puts exposed fetuses under the jurisdiction of juvenile courts. The courts can order the expectant mother confined to a treatment program, a physician’s office, a hospital or a relative’s home.

That bill was filed in response to a case in which a cocaine user was confined in suburban Milwaukee in 1995. Sponsors say they expect Republican Gov. Tommy G. Thompson to sign the bill into law within a few weeks. Once signed, it would take effect immediately.

In March, South Dakota’s Gov. William Janklow signed a pair of bills making it legal to commit substance abusers involuntarily for almost the entire period of their pregnancy. Those laws take effect July 1.

Similar bills have been introduced in 12 states this year, compared to seven--all of which failed--in 1997.

Civil liberties groups are voicing strong concerns. “If two states pass this kind of legislation, others will feel really emboldened,” said Louise Melling, associate director of the American Civil Liberties Union’s Reproductive Rights Project. “You do have to wonder how people are thinking about women and what the government can demand that they do.”

But politicians who say they are horrified by the effects of fetal alcohol syndrome and uterine drug exposure have little sympathy for such views. “No woman has a right to do that to a child,” said Republican state Rep. Scott Eccarius, a Rapid City, S.C., eye surgeon who sponsored one of his state’s measures.

It is not uncommon for women to engage in behavior that could hurt their developing babies. A pediatrics journal estimated in 1992 that 11% of fetuses across America are exposed to illegal drugs.

Efforts to prosecute as criminals women who endanger their fetuses have brought mixed results in the last 15 years, with many cases dropped and most lower-court convictions overturned on appeal. In July 1996, however, the South Carolina Supreme Court let stand the manslaughter conviction of a woman who shot herself in the abdomen when she was more than 20 weeks’ pregnant, killing the fetus.

In Wisconsin, the corporation counsel for Waukesha County decided to try the civil route when an obstetrician reported that his then-24-year-old patient was using cocaine, drugging her developing baby. A juvenile court judge ordered the county sheriff to take the fetus--and, of course, the woman who carried it--to the hospital.

The expectant mother, known in court records as Angela M. W., was not under arrest, or charged with any crime. But she was not free to leave treatment.

She stayed for three weeks until giving birth to her third child, a boy christened in court files as Bobby L. W. Cocaine was present in the baby’s meconium--his first solid waste--but not in his bloodstream. His mother’s parental rights have been terminated.

Wisconsin’s appeals court agreed with the lower court that the state’s interest in a fetal life outweighed the mother’s right to freedom of movement by the third trimester--rooting the argument in Roe vs. Wade, the landmark abortion case that outlined a woman’s choice to continue or terminate a pregnancy.

The state Supreme Court, however, said last year that the matter was for lawmakers to decide--a common response in fetal protection cases. “Courts are not typically out in front of social issues,” said William J. Domina, assistant corporation counsel for Waukesha County. “I think courts have been uncomfortable dealing with this without more legislative direction.”

So Domina contacted his local state senator, Joanne Huelsman, a Republican, and asked for her help. He was far from certain that a detention law could be passed.

One legislature, in Minnesota, already had addressed the issue. Kathleen Blatz, now chief justice of the Minnesota Supreme Court, introduced a measure in 1988, when she was a state senator, providing for involuntary commitment of pregnant women abusing cocaine, heroin and other hard drugs--not marijuana. After hearing testimony about crack babies, she recalled, she thought: “We keep looking at how to help the child after it’s born. What good does that do anybody?”

Her bill passed quietly, she added, with the major opposition coming from doctors who did not want to be forced to report their pregnant patients’ drug use to authorities.

Since then, Blatz said, “more than a handful but probably fewer than 100” women have been committed under the law, and some of them received stays when they entered outpatient treatment programs instead. Commitments to residential programs generally are not for more than 28 days, she said.

This year, lawmakers defeated an attempt to add alcohol to Minnesota’s list of substances that can lead to commitment. The bill as passed requires the medical community to educate patients about the damage that too much drinking can cause a fetus.

“We’ve got an emerging awareness of the problem,” said state District Judge Joan Lancaster, who co-chaired--along with Susan Carlson, the governor’s wife--a state fetal alcohol syndrome task force.

In California, a bill to define drug use in late pregnancy as criminal child abuse failed in committee last month.

Even in South Dakota and Wisconsin, the two states now taking on the cause, the government’s proper role in protecting fetuses from their mother’s abuses became a focus for furious dispute.

“I just was flabbergasted,” Eccarius said. “We didn’t see this as infringing on the rights of the woman who takes drugs. We wanted to help her, help her be a mom and help the kid.”

Wisconsin social services agencies testified in committee hearings that there were not enough slots in treatment programs available for pregnant women who come forward voluntarily, let alone for those who might be ordered there.

Huelsman, the bill’s sponsor, agreed with that concern. “This is Step 1,” she said. “We need to provide more money. We need more treatment facilities that have space for a mother, and for her other children. That’s one of the things we should work on in the next session.”

She noted that the new law specifies that juvenile courts should take custody of fetuses only in substance-abuse cases. Critics were concerned that “pregnancy police” might end up confining pregnant women who smoke, or who disobey doctors’ orders.

Even Huelsman is troubled by an amendment that gives the custody right to courts as far back as conception. She had intended that only a viable fetus be eligible for such protection.

Times researcher John Beckham contributed to this story.