National Advocates for Pregnant Women victories in Arkansas, Wisconsin‏

Cynthia Greenlee, National Advocates for Pregnant Women
Phone: 212-255-9252, ext. 38
NAPW marks 2 legal victories in states that have incarcerated women
based on pregnancy and drug-use claims
Appeal will free Arkansas woman, Wisconsin case moves forward
NEW YORK – On Oct. 8, the Arkansas Supreme Court reversed the conviction of Melissa McCann Arms, who was sentenced to 20 years imprisonment for introducing a controlled substance into the body of another person when she gave birth in 2013. The Arms v. State of Arkansas victory comes a week after a federal district court ruling that allowed a constitutional challenge to the 1997 Wisconsin “cocaine mom” law to go forward. Together, the cases represent two important and positive rulings that uphold the rights and health of pregnant women.

In its ruling, the Arkansas Supreme Court concluded that the intent of Arkansas’ law was to prevent the drugging of another person through the use of “knock-out drugs” and not to punish women who become pregnant and deliver despite drug use.
NAPW Senior Staff Attorney Farah Diaz-Tello, who argued the case before the court, said: “This law was used in a way that was never intended by the Arkansas legislature. We are not only glad to see this acknowledged by the highest court of Arkansas, but glad that other women like Ms. Arms will not have to go through arrest, interrogation, and separation from their newborn for giving birth and testing positive for a controlled substance. We hope Ms. Arms will be released from prison immediately, quickly reunited with her child and have this conviction expunged from her record.”

On Sept. 30, a federal district court judge denied Wisconsin’s request to dismiss a civil-rights lawsuit challenging a state law used to illegally jail and detain pregnant women. The law, commonly called “the cocaine mom law” when it was passed, allows the state to detain pregnant women, at any stage of pregnancy, if they use or admit to past use of alcohol or drugs. Tamara (“Tammy”) Loertscher, the plaintiff in the lawsuit, is represented by National Advocates for Pregnant Women (NAPW), the Reproductive Justice Clinic at NYU Law School, and Perkins Coie law firm in Madison.

Ms. Loertscher’s ordeal began in 2014 when she sought medical help early in her pregnancy and tested positive for methamphetamine and marijuana. Ms. Loertscher told her doctor that she had briefly used these substances to self-medicate for serious thyroid problems before she knew she was pregnant. Rather than providing confidential medical help, the hospital reported her to state authorities and turned over her medical records. Using the 1997 law, an attorney was appointed for her 14-week fetus, and a hearing was held without Ms. Loertscher. When she refused the unnecessary drug treatment mandated in the hearing, she was incarcerated for 18 days in a county jail without initial access to her thyroid medication; put in solitary confinement; and threatened with a Taser.

“This law deprives pregnant women in Wisconsin of nearly every constitutional right we hold dear,” said Sara Ainsworth, director of legal advocacy at National Advocates for Pregnant Women and co-counsel on the case. “Liberty, privacy, medical decision-making, the right to counsel — Wisconsin flagrantly violated Ms. Loertscher’s rights and increased the risks to her health and that of her 14-week old fetus when they put her in jail.”

The State of Wisconsin asked federal Judge James D. Peterson to dismiss Ms. Loertscher’s lawsuit for procedural reasons, arguing in part that the case should be dropped because Ms. Loertscher is no longer pregnant. The court rejected these claims. The federal court system can now decide whether this state law is constitutional.

NAPW Executive Director Lynn Paltrow said: “There is a vital underlying message in both cases. The legal rules that prohibit prosecutors from making up new crimes, require them to prove their cases, and provide access to the federal court system all apply to pregnant women — no less than other persons.”