Abortion Rights at Risk: The GOP Opens a New Front in the War on Women

The anti-abortion movement is ramping up a new strategy: Sending pregnant mothers who have used drugs and alcohol to jail

So-called fetal-protection laws are part of a broader national campaign by pro-life groups to overturn Roe v. Wade. Credit: Illustration by Victor Juhasz

Tammy Loertscher had no idea that seeking a pregnancy test would ultimately put her in jail. That, though, is what happened last summer to the blond 29-year-old nursing aide from Medford, Wisconsin, who, after confirming her pregnancy at a local health clinic, admitted to her doctor that she'd recently stopped using methamphetamines and pot. According to a sworn statement she later filed in a civil suit, Loertscher had been struggling for more than a decade with a severe thyroid condition that, if untreated, left her lethargic and depressed. In February 2014, she quit her job during a bout of depression, which meant she could no longer afford the expensive blood tests doctors required to continue to prescribe her medication. To manage her worsening symptoms, she'd briefly self-medicated with meth and the occasional hit of weed to soothe her anxiety and give her some energy. It helped for a while, she says, "but ultimately the depression would take over and it just became a big cycle."

Last July, Loertscher, suspecting she was pregnant by her boyfriend, did what to many people would seem like the right thing to do. Still deeply depressed and exhausted, she took herself to a hospital looking for help. A urine test confirmed that she was pregnant but also showed traces of the drugs. So Loertscher told the doctor everything. "I was worried for [the baby's] health, so I thought if I was honest, they would help me, and help him," she says. "The baby was my priority."

What happened next shocked Loertscher to such an extent "I still can't believe it happened," she says. Insisting she get drug treatment, which Loertscher refused on the grounds that she was now clean, the hospital then notified county officials, who filed a petition to compel her into treatment maintaining that she was endangering the health of her unborn child. (The hospital declined to comment.) At that moment, Loertscher became the latest unwitting target of Wisconsin's punitive "cocaine mom" statute, which gives state officials the power to detain, arrest or otherwise punish pregnant women for substance use. Though she was not afforded legal representation, Loertscher's 14-week-old fetus was given a lawyer, known as a guardian ad litem. This court-appointed official represented the fetus's interests during two hearings that resulted in Loertscher being incarcerated for refusing to enter drug treatment. "It seemed so crazy — I was like, 'I'm not using anymore because I don't want to hurt my child!' " she recalls. Nonetheless, she spent 18 days in jail — including 24 hours in solitary confinement, according to her sworn statement. She says she was given no prenatal care. At one point, she alleges, a guard even threatened to taser her after she refused to submit to a urine test. Finally, she found a public defender who negotiated her release.

"I was so ignorant," says Loertscher, whose claims are part of a federal civil rights lawsuit she filed in January, alleging that Wisconsin's cocaine-mom law is unconstitutional and violated her civil liberties. "I thought I had rights. But it turned out my baby had more constitutional rights than I did."

The Wisconsin statute, like many other so-called fetal-protection laws across the country, is representative of a much broader national campaign by pro-life groups to overturn Roe v. Wade. A wide range of conservative legislators, including GOP presidential hopefuls Marco Rubio, Scott Walker and Ted Cruz, have expressed support for abortion restrictions such as the so-called 20-week ban. Walker and Cruz have also favored the idea of granting separate legal status, or "personhood," to the unborn, which in pro-life rhetoric equates abortion with murder. But abortion is actually just the beginning. What granting personhood to fetuses really does, say many reproductive-rights advocates, is pit the rights of the unborn against the rights of the mother. "Pregnancy in our society tends to be idealized and women counted on to provide a perfect uterine environment," Northwestern University law professor Deborah Tuerkheimer recently wrote in an op-ed in The New York Times. "Fetal rights can be employed to justify any deviation from this standard." And this isn't simply a hypothetical, she and others point out. Pregnant women have been prosecuted or subject to forced interventions for substance abuse, for refusing to have a Caesarean section, for attempting suicide, even for falling down the stairs. In a future that seems straight out of The Handmaid's Tale, the interests of "fetal protection," Tuerkheimer noted, might lead to pregnancy itself becoming a matter of state regulation.

Since the cocaine-mom law was passed in 1998, at least five Wisconsin women have been targeted under the statute, though advocates say the real number is likely much higher. In July 2013, 28-year-old Alicia Beltran, also 14 weeks pregnant, was arrested by sheriff's deputies at her home just north of Milwaukee and accused of endangering her unborn child by refusing to take medication for a pill addiction she swore she didn't have. According to a lawsuit later filed by Beltran, during a prenatal checkup she had admitted that in 2012 she'd become dependent on the painkiller Percocet but had kicked the habit the previous fall, using the opioid addiction medication Suboxone. The urine test she took that day showed traces of Suboxone, which she'd weaned herself off a few days earlier, and a subsequent urine test was negative. Nonetheless, after refusing to start taking Suboxone again, Beltran was threatened with a court order.

About two weeks after her initial prenatal visit, she was arrested and brought, shackled, before a court commissioner, who, she told The New York Times, ignored her request for a lawyer, though her fetus had one. Bolstered by a statement from a hospital physician who referred to Beltran as exhibiting "lack of self-control," the court ordered her into a drug-treatment program, where she spent the next 78 days. In 2014, a Wisconsin federal judge dismissed the lawsuit she'd filed challenging her detention and its constitutional basis. 

"It is not only that laws like this deprive women of their liberty and almost every other civil right associated with being a person protected by the U.S. Constitution," says Sara Ainsworth, director of legal advocacy at the nonprofit National Advocates for Pregnant Women, which is representing both Beltran and Loertscher in cooperation with the Carr Center for Reproductive Justice at NYU School of Law. "These laws actually put women's health and the health of their pregnancies at risk — which is totally contradictory to the claimed intent of this law. Basically, the law's true purpose appears to be to control and stigmatize pregnant women who have used any amount of a drug or alcohol."

And it's not just Wisconsin. South Dakota and Minnesota also have laws that permit the state to involuntarily commit pregnant substance abusers to a psychiatric or drug-treatment center. At least 15 states consider drug or alcohol use during pregnancy to be a form of "child abuse." While these laws were created to protect the health of the unborn, their real-life impact has often been to endanger maternal and fetal health, and to deprive women of their status as constitutional persons.

"What this is really about is creating a separate legal status for pregnant women," says Lynn Paltrow, executive director of National Advocates for Pregnant Women, who co-authored a 2013 study that documented more than 400 cases between 1973 and 2005 of pregnant women who were subject to arrest, detention or forced intervention by state authorities. "There is no way to grant separate rights to eggs and fetuses without removing rights from women."

These cases, which overwhelmingly affect poor women or women of color, gained little national attention until March, when a 33-year-old woman named Purvi Patel appeared in a South Bend, Indiana, courtroom, having been convicted in February for acts of fetal homicide and child neglect. According to prosecutors, Patel, who had confessed to leaving a roughly 24-week-old fetus in a dumpster after suffering what she maintained was a miscarriage, had actually given birth to a living child, which she allowed to die. But what lay beneath this argument was the state's assertion that Patel had tried to abort the baby a few days earlier using abortion-inducing drugs. Indiana has a restrictive approach to abortion, banning the procedure past 20 weeks' gestation, with exceptions only for medical necessity. Patel was accused of illegally inducing her own abortion.

No trace of the drug was found in either Patel's body or that of the fetus. In the highly contentious trial, the prosecution presented its case that the baby wasn't stillborn. In one of the more bizarre bits of testimony, worthy of a Monty Python skit, a pathologist testifying for the prosecution stated that he'd tested to see if the fetus had taken at least one breath by removing the fetal corpse's lungs and placing them in water to observe whether they floated — a technique, dating to the 17th century, that has long been discredited.

But while the facts surrounding Patel's pregnancy and how it ended were murky, the conclusion the jury drew — that she had abandoned a child and also committed "feticide" by attempting an illegal abortion — wasn't. On March 30th, Patel was sentenced to 20 years in prison.

While it would be tempting to look at the Patel case as an outlier, fetal-homicide statutes exist in 38 states, 23 of which apply them to the earliest stages of pregnancy. In some states, legislators have put explicit restrictions in the laws to prevent them from being used to punish women. But without such a restriction, notes Alexa Kolbi-Molinas, a staff attorney with the ACLU, "prosecutors are free to try to use these laws to turn any woman who has a miscarriage into a criminal." This was particularly apparent in the Patel case, which rested largely on a series of text messages Patel had written to a friend indicating her purchase of abortion-inducing drugs. "This case exposes as a lie the refrain the anti-abortion movement has been clinging to for ages: that if abortion was illegal, women who still sought abortions — as we know they would — would not be prosecuted," says Kolbi-Molinas. "But Ms. Patel was sentenced to 20 years for self-inducing an abortion — for attempting to perform a constitutionally protected medical procedure on herself. If the criminal laws can be used against women this way while abortion is legal, imagine what it will be like if it isn't." 

The Patel and Loertscher cases, like many other cases across the country, have their roots in a so-called personhood strategy that grew out of the Supreme Court's assertion, in Roe v. Wade, that as the Constitution's definitions of persons did not extend to prenatal life, abortion was still a matter of a woman's right to privacy. Since that 1973 decision, anti-choice activists have worked steadily to devise a multipronged approach to overturn Roe. This has included appealing to a woman's moral sense — holding noisy street protests equating abortion with murder — and passing a series of restrictions that have made abortion all but impossible in a number of states.

A third rail has set about pushing for a constitutional amendment affirming that life begins at conception. While the original efforts to pass a Human Life Amendment, as it was known, tapered off in the 1980s, by the 2000s a new generation of anti-abortion activists was ready to try again. In 2008, an anti-choice group called Personhood USA managed to get the first "personhood amendment" on the Colorado ballot. The measure failed, and similar personhood initiatives introduced in other states have also been voted down. Josh Craddock, a spokesman for Personhood USA, is nonetheless sanguine. Every social movement has its struggles, he says: "Look at women's suffrage. Women and their male allies worked to put amendments on the ballot for a decade in South Dakota, and every time they put it on the ballot they increased their support and awareness. With personhood, every time we've put it on the ballot in Colorado, we've increased our percentages."

Beyond these amendments, however, lies a more subtle long-term approach, embraced by more-mainstream abortion opponents, that may be far more effective. As anti-abortion activists have pushed state legislatures to dismantle abortion rights by imposing restrictions on providers, advocates at the state level, often backed by the National Right to Life Committee, have also supported fetal-victimhood laws and punitive treatment for women who abuse drugs or alcohol during their pregnancy. A majority of states have enacted laws to issue birth certificates to stillborns.

In Alabama, state Supreme Court Justice Tom Parker, a staunch believer in fetal personhood, has spent years developing a canon of legal reasoning intended to overturn Roe v. Wade. In 2011, the Alabama court established that a fetus, whether it's viable or not, is protected under the state's wrongful-death statutes, which overturned the long-standing precedent in the state. The legislature followed suit: Under a new Alabama law, a fetus also has the right to an attorney in cases where a teenager is seeking an abortion without parental consent. A teenager was already required to appear before a judge for questioning; the new law allows the fetus's lawyer to question her too.

What the Alabama law does, notes the ACLU's Andrew Beck, is target teens in crisis and put them, essentially, on trial. "The abortion restrictions that go after the providers aim at shutting them down. But this law goes right after teens who have to resort to a court process to get the health care they need. Its laserlike focus on the most vulnerable people seeking abortions makes it particularly harmful and cruel."

The American College of Obstetricians and Gynecologists is among a plethora of medical groups that have spoken out against punitive treatment of pregnant substance abusers. In a 2011 statement, ACOG noted that not only did the threat of incarceration discourage women from seeking prenatal care, but "proved to be ineffective in reducing . . . alcohol and drug abuse."

The right's answer to ACOG, a parallel organization called the American Association of Pro-Life Obstetricians and Gynecologists, believes that physicians have the right to follow their conscience. One doctor listed with the group as a "pro-life physician," Kelly McGuire, played an unusually active role in the Purvi Patel case. On the day she gave birth, Patel went to an emergency room where McGuire, an attending OB-GYN, realized that she had likely given birth to a fetus he felt "was fairly far along." Physicians are considered "mandated reporters" of child abuse, and McGuire called the authorities, as he told PRI's The World. He also went so far as to join the police in their search for the abandoned fetus, which was discovered in a bin behind a shopping mall. This made Patel, who underwent surgery to remove the placenta, a criminal suspect, and upon waking up in the recovery room, she was questioned, without a lawyer, by the police.

Patel's defense is planning to appeal her conviction. In Wisconsin, attorneys for Beltran and Loertscher are still hoping a federal court will rule the cocaine-mom law as unconstitutional. Loertscher, as a condition of her release from jail, had to undergo drug testing and see an addiction counselor. "I saw her twice," she says. "The first time, she told me she didn't think I had a problem. But in an assessment, she wrote that I should take two drug tests a week."

Around this time, Loertscher also got a letter from the child-welfare agency informing her of an administrative finding that she'd committed "child maltreatment," which would go on her permanent record. This means she could be barred from taking another job as a nursing aide. Loertscher has filed an appeal to the finding.

In January, Loertscher gave birth to a healthy baby boy who she and her boyfriend, Dondi Ellner, a musician, named Harmonius Orion. Not long afterward, the couple decided to leave Wisconsin for good. They now live in Hawaii. "I had stopped using drugs voluntarily," she says. "But from the moment I went to that clinic for help, we've been treated like shit. Every time we went to the doctor, we were treated like bad parents because of what's in my health records." Even after her son was born, she says, the scrutiny didn't stop. "Medford is a small town," she says. "I couldn't handle being painted as the bad, drug-using pregnant woman anymore." She and her family are hoping to start over. "My wish is to be a stay-at-home mom," she says, "and to be there for my son."