Informing Consent: Medical Malpractice and the Criminalization of Pregnancy

By Cohen, Laura Beth | Michigan Law Review, May 2018 | Go to article overview

Informing Consent: Medical Malpractice and the Criminalization of Pregnancy


Cohen, Laura Beth, Michigan Law Review


INTRODUCTION

In late July of 2014, Tammy Loertscher stopped using illicit drugs when she realized she was pregnant.1 She had been self-medicating with methamphetamine and marijuana since she lost her job and thus her ability to pay for her much-needed thyroid medication.2 On August 1, she went to the Taylor County Department of Human Services (DHS) for help finding and paying for prenatal care and thyroid treatment.3 DHS sent her to a nearby medical clinic.4 She told the clinic staff that she had used drugs, had a thyroid condition, and suspected she might be pregnant.5 The staff asked her for a urine sample, which she provided.6 She tested positive for methamphetamine, amphetamine, and THC.7 The clinic also determined that Ms. Loertscher had severe hypothyroidism, depression, and fatigue.8 She agreed to enter the Behavioral Health Unit (BHU) for treatment.9

After she was admitted, clinic personnel shared Ms. Loertscher's medical records with DHS, a branch of the Wisconsin Department of Children and Families.10 While Ms. Loertscher was in the BHU, her social workers repeatedly threatened her with civil confinement if she did not waive confidentiality regarding her medical records.11 They also told her that failure to acquiesce to DHS's demands would result in her baby being taken away from her upon birth and put up for adoption.12 In the meantime, Taylor County appointed an attorney to be the guardian ad litem for Ms. Loertscher's fetus.13

On August 4, Ms. Loertscher attempted to leave the BHU but was not permitted to do so because Taylor County had issued a custody order requiring her to stay.14 At the time, Wisconsin had a law that allowed fetuses (and thus women) to be taken into custody by the state if there was evidence of prenatal drug use.15 On August 5, Taylor County convened a phone hearing to determine whether it would detain Ms. Loertscher.16 The hearing included counsel for Taylor County and the fetus's guardian ad litem, but it did not include legal counsel of any kind for Ms. Loertscher.17 During the call, Dr. Jennifer Bantz, an obstetrician who had briefly met Ms. Loertscher, provided Ms. Loertscher's confidential medical information to the judge.18 At the end of the hearing, the county commissioner entered a custody order against Ms. Loertscher which required her to remain in a treatment facility for the duration of her pregnancy.19 No evidence was presented regarding harm to the fetus.

Defying of the custody order, Ms. Loertscher checked herself out of the clinic on August 7.20 Four days later, her fetus's guardian ad litem filed a motion for the Taylor County Court to hold Ms. Loertscher in civil contempt.21 At the contempt hearing, Ms. Loertscher was again not provided with legal counsel, and the fetus's guardian ad litem "admit[ed] all of the allegations against Loertscher" on behalf of the fetus.22 As a result, the court held Ms. Loertscher in contempt and ordered her to check into an inpatient treatment program or spend thirty days in jail.23

Ms. Loertscher ended up spending eighteen days in jail.24 During the first few days of her incarceration she was denied her much-needed thyroid medication.25 Then, when she experienced "cramping, pain, and vaginal discharge," her requests to see an obstetrician were denied.26 The jail physician told Ms. Loertscher that there was "nothing" they could do about a miscarriage without first confirming the pregnancy, even though Ms. Loertscher's pregnancy was the reason she was in jail in the first place.27 When Ms. Loertscher refused to take a pregnancy test, she was placed in solitary confinement.28

The solitary confinement cell was a room without windows containing only a toilet and a metal bed frame. The room was cold and filthy. The floor, walls, and toilet area had hair and feces on them, and there were fingernails visible beneath the mattress frame. There was no mattress on the bed. Ms. Loertscher was given only a roll of toilet paper. …

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