For Tammy Loertscher, pregnancy and birth could have been a joyous, momentous, life changing event — it was anything but.
Tammy had been sick for some time — as a teenager, her thyroid gland had been chemically removed using radioactive iodine. As an uninsured adult, she could not afford the synthetic thyroid hormones she should have been taking daily to help her manage her symptoms. She sometimes used methamphetamines and cannabis to help her cope.
Because of her thyroid condition she had always thought she could not get pregnant. So when she saw two faint lines form on her pregnancy test, she was overwhelmed with disbelief and excitement. As the lines formed on a second pregnancy test, she felt determined. “I had this urgency: I need to go in, I needed to get back on medicine, I needed to fix myself for the baby.”
Uninsured and desperate for care, Tammy went to her local social services office is Wisconsin and received a referral to the Mayo Clinic Emergency Room where she divulged her medical history including her pre-pregnancy drug use.
The doctors reported her to Taylor County Social Services and she was prohibited from leaving the hospital. An attorney was assigned to her unborn baby. When she refused to participate in an official hearing because she had not been given the opportunity to obtain her own legal defense, the hearing continued with only her baby’s lawyer and a judge.
Despite Tammy never testing positive for drug use while she was pregnant, her unborn baby was placed in custody of the state, Tammy’s body along for the ride. Tammy was ordered to attend inpatient rehab treatment or spend 30 days in jail for being in contempt of court.
“I thought going to rehab would be admitting I was an addict.” Tammy went to jail.
As of October 2019, 23 states have fetal assault laws regarding drug or alcohol use during pregnancy; 25 states require physicians to report suspected drug use to authorities. These laws, among other fetal personhood laws in the United States, give medical care providers the authority to act as stewards of fetal rights.
One labor & delivery nurse I spoke with who has practiced for over 25 years says interventions like these are positive. She has reported women to social services that have come into the hospital to give birth when she suspected them of drug use. As a nurse, she doesn’t need permission to drug test the mother or the baby — her suspicion is adequate cause. “It protects babies,” she says.
Jo Ardinger, director of the new documentary Personhood about Tammy’s story, disagrees. “[These laws] keep women from seeking the help and medical care that they need for a healthy pregnancy because they’re too afraid they could be arrested. If you can’t trust your doctor to protect your right to privacy, you aren’t going to put yourself in danger of being reported to state authorities.”
From 2004 to 2014, the incidence of neonatal abstinence syndrome (NAS) — babies born in withdrawal from opioids — increased by over 400% in the United States. The federal government responded to this steep upsurge by amending the Child Abuse Prevention and Treatment Act (CAPTA) in 2016 with the Comprehensive Addiction and Recovery Act (CARA) which required states to have systems in place for mandatory reporting for women suspected of substance abuse in pregnancy.
Some states have used the CARA guidelines to improve methodology and provide comprehensive care for families affected by substance abuse. Others have taken the initiative to reinforce or enact punitive laws against pregnant people suspected of drug use.
New York is one state that has made a sincere effort to support healthy families rather than criminalize mothers. When a medical care provider alerts a social worker of prenatal substance use, social services attempts to take steps of preventative care first: providing the parents addiction treatment and recovery services, parenting classes, and other health services as necessary. If the birth parent is in crisis and the baby has been born, the baby will be placed with a family member or in foster care until the parents take necessary steps to show they can provide a safe home.
From 2014 until it expired in 2016, Tennessee had the most punitive fetal assault law in the nation — women faced up to 15 years in prison and loss of custody if they tested positive for drugs during pregnancy or if their babies tested positive at birth. There were 124 women arrested and convicted during the two years the law was in place. SisterReach, a Tennessee based nonprofit organization, found that women who were afraid they may be arrested under the law, avoided medical care altogether or left the state to receive care or give birth.
“Jail is an unsafe place for any human being, so they’re actually putting fetuses in grave danger when they use jail to solve social problems,” says Ardinger. Tammy spent 18 days in Taylor County Jail, where she was threatened with physical violence and held in solitary confinement for noncompliance. It is estimated that about 4% percent of the over 100,000 women in prison in the United States are pregnant at the time of their incarceration.
Tammy says when her son, Harmonious, was born, “I held him up to see him eye to eye and felt how big his presence was.” When she remarked how big he was a nurse in the room responded, “he’s actually small” — low birth weight is common to babies whose mothers use drugs prenatally.
Shortly after giving birth, a social worker came to Tammy’s room — when she told the social worker to leave (her lawyers had obtained an order of protection from Taylor County Social Services because of the ongoing harassment she endured) — she was told that her son would be put into foster care if she did not cooperate. A security guard was ordered to her room and told to arrest Tammy or her partner, Dondi, if they tried to leave with their newborn son.
Tammy continues to question whether she made the right choice to disclose her full history to the doctors at the Mayo Clinic. “She did the right thing by immediately going to social services for help. Instead of getting that help, she was subjected to gross civil rights abuses and her pregnancy was actually put in danger by the state,” Ardinger emphasizes.
The experience still haunts her. Harmonious is a bright, bubbly four year old, but will always be viewed by anyone who receives his medical records — schools, doctors, the state — as the child of a drug abuser. Tammy homeschools him and generally avoids situations that may bring up her history with the state of Wisconsin. “I now have constant, nagging feelings of inadequacy when it comes to everything, especially being a parent.”
In 2017, Tammy and her team of lawyers won a massive victory when Wisconsin’s Act 292, the “Unborn Child Protection Act”, was declared unconstitutional by a federal judge. This ruling was later vacated on a technicality by a panel of three male judges because Tammy had moved out of the state.
“It breaks my heart to know that the only way this case can be reviewed again is if another expectant mother is put through a similar circumstance. I wish there was another way,” says Tammy.
In Alabama, women who have been charged with “chemical endangerment” of a fetus have their mugshots posted on social media, in newspapers and on the evening news by authorities. Public shaming through this digital age stockade acts not as a deterrence from using drugs during pregnancy but likely, rather, serves as a reminder to do so in secrecy.
When the fear of criminal prosecution or of the stigma of being a “cocaine mom” leads women — some who may be in serious need of help — to avoid medical treatment serious complications in pregnancy, childbirth, and postpartum will continue to rise. With the extraordinarily high maternal and fetal mortality rates in the United States, and the increasing prevalence of babies born with NAS, these laws can only do harm to the people they claim to protect.
As we go into the 2020 election, Ardinger cautions, “the Trump administration has been appointing judges and remaking the courts at record pace. The impact of these lifetime judicial appointments will be felt for decades. So far, many of the extreme state laws that have been passed have been stopped by the courts. Women won’t have this protection when the courts are stacked against them. 2020 is extremely important especially for this reason.”
If anti-choice legislators and the fetal personhood movement really want to achieve their goal of protecting unborn children in the United States — they need to acknowledge punitive fetal assault laws are in direct opposition of that goal. These laws push pregnant people to hide their pregnancies, increasingly seek abortions, and put themeselves and their fetuses in grave danger by avoiding critical prenatal care.
