Wisconsin Lawmaker Seeks Change to ‘Fetal Protection’ Law


A Wisconsin lawmaker is pushing to change legislation known as the “cocaine mom” act, a “fetal protection” law, in light of a high-profile case in which a pregnant woman was provided fewer legal protections than her fetus.

The case that has drawn national attention to the law is that of Alicia Beltran, a pregnant Wisconsin woman who was detained without legal counsel while the fetus she was carrying was provided with legal representation. As RH Reality Check reported in October, Beltran disclosed past drug addiction at a prenatal care visit.  After her refusal to take anti-addiction medication, despite a clean drug test, she was taken in shackles before a county commissioner and given a court-ordered 78-day stay at a drug treatment facility.

Three other states have similar laws: Minnesota, Oklahoma, and South Dakota. A National Advocates for Pregnant Women study found that states have brought criminal charges against women in which their pregnancy was a factor in the charges 413 times. The study found that like in the case of Beltran, these women’s constitutional rights were also violated, with regards to their right to due process, right to legal counsel, and freedom of movement.

State Rep. Chris Taylor (D-Madison) told RH Reality Check that she is at the beginning stages of drafting legislation that would change the statute. “I don’t think the law is constitutional,” said Taylor. “The law is very very vague, and there no requirement for any evidence of drug use.” Taylor also said it violates a woman’s rights to privacy and due process.

Beyond the constitutional argument, Taylor said the law is simply bad public policy. “Incarcerating pregnant women does not lead to better health outcomes,” she said. “I thought it was misguided in 1998. We certainly know a lot more now about the medical impact it has now. It doesn’t help pregnant women.”

The political makeup of the Wisconsin legislature will make it difficult for Taylor to change the law. A Republican-controlled state legislature and governor’s office will make it unlikely that Taylor will find enough support for the effort. In fact, there has been a recent push by Wisconsin Republicans to pass “personhood” legislation. “In this legislature it’s going to be very very difficult to do something about this,” said Taylor.

The law is also facing a lawsuit challenging its constitutionality. Lynn Paltrow, executive director of National Advocates for Pregnant Women, told RH Reality Check that the group is at the beginning stages of litigation, and is confident about the case. “The law on its face is unconstitutional for many many reasons,” said Paltrow, who cited examples of the law violating Beltran’s civil rights, including her right to due process and right to privacy.

Paltrow said that if the law is struck down by the court, it will not set a legal precedent for which other, similar laws could be challenged, but it would have strong persuasive value. She also said it could affect “personhood” measures, laws which give a fertilized egg or fetus the same constitutional rights as full and separate persons.

Proponents of “fetal protection” laws “think that these types of laws will protect pregnant women and fetuses from violence when in fact [they’re] doing the opposite,” said Paltrow. The American Congress of Obstetricians and Gynecologists released a statement saying these types of laws “are contrary to the welfare of the mother and fetus” and that “incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” 

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