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The Wisconsin Fetal Protection Law November 15, 2023 1
The state of Wisconsin passed a law in 1998 called the Unborn Child Protection Act or as
previously called before “cocaine mom law”, that protects unborn babies from being exposed to
alcohol and illegal substances consumption during the pregnancy. “The purpose of the
Wisconsin bill, according to its framers, is to provide a just and humane program of services to
children and unborn children and the expectant mothers of those unborn children” (DeVille &
Kopelman, 1999). The purpose of this law is to protect the basic needs when an expectant mother
of an unborn child has a habitual lack of self control when using alcoholic beverages or
controlled substances that can harm the fetus (DeVille & Kopelman, 1999). This law allows the
state of Wisconsin to accuse certain pregnant people of unborn child abuse if evidence shows
that the soon to be mother has been consuming alcohol or other illegal substances during her
pregnancy. Pregnant women are forced to drug treatment, psychiatric hospitals and even jail
time.
Risk to the Public Health The consumption of alcohol and illegal substances is a public concern in the United
States. Consumption of substances during pregnancy can have adverse effects on fetal
development and lead to multiple complications for mother and the fetus. The use of illicit
substances has increased tremendously over the past decade in the United States, with an
estimate of 8.5% of pregnant women between the ages 15 to 44 using illicit substances in 2018
(Meinhofer et al, 2019). In 2020, 10% of pregnant women had reported current of alcohol use;
some also reported the use of one or more other substances accounting to 40% of pregnant
women (Centers for Disease Control and Prevention, 2023). As noted the rates of consumption
of alcohol and other illegal substances among pregnant women has increased from 2018 to 2020.
Exposure of substances in the utero is associated with high rates of perinatal mortality, birth
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defects, low birth weight, low gestational age, and neonatal drug withdrawal syndrome
(Meinhofer et al, 2019). State of Wisconsin has enforced the law due to concerns about the
consumption of alcohol and illegal substances affecting the fetus. Pregnant women consuming alcohol during pregnancy can lead to miscarriages,
stillbirth, range of lifelong birth defects and developmental disabilities, these are known as fetal
alcohol spectrum disorders (Centers for Disease Control and Prevention, 2023). Women who
consume alcohol during their pregnancy put the child’s life at risk of having long-term medical
conditions that would affect their daily life. The use of illegal substances such as opioid has been
linked to poor fetal growth, preterm birth, specific birth defects and neonatal opioid withdrawal
syndrome (Centers for Disease Control and Prevention, 2023). Babies born to women who used
illegal substances during their pregnancies not only put the child at risk but also their health at
risk, therefore the law’s focus is to decreased the rate of consumption of alcohol and illegal
substances among pregnant women. Beneficence vs. Maleficence The potential pro of the Unborn Child Protection Act is that the law protects the fetuses
throughout the women’s pregnancy. Medical providers and staff can report if there is any
abnormalities in urine that could be a reason of concern to intervene. Unfortunately the Unborn
Child Protection Act has more cons than pros in the state of Wisconsin that has been affecting
pregnant women. Wisconsin is among the most punitive states of legal consequences to impose
for prenatal substance use (UW Core, 2022). The state of Wisconsin can involuntarily commit an
expectant mother who uses drugs or alcohol during pregnancy to treatment facilities until her
child is born (Linder, 2005). Another issue with the law is that the fetus has a complete right to
counsel while the soon to be mother does not have a complete right to counsel (UW Core, 2022).
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The fetus has a guaranteed representation in Wisconsin, while the pregnant person does not and
that classifies as maleficence, taking away the right of a person to be equally represented. This
law has done more harm than good to the state of Wisconsin; the fear of punishment among
pregnant women discourages them from seeking prenatal care and substance use treatments. The
relationship between a medical provider and a pregnant person has also been affected by this
law, pregnant women are afraid of disclosing information that could get them in trouble. This law has created a difficult situation for pregnant women that need prenatal care.
Women would miss their appointments or not have a thorough follow up during their pregnancy
with their medical provider due to this law. They are scared of being separated from their unborn
child, being forced to enter a treatment center without their consent and even face jail time. This
has affected mostly minority groups, women who have no access to the necessary resources to
seek help on time to help them overcome an addition without being persecuted by the state. Cost in Money, Time, Labor Power, or Other Resources Since the year 2007, an average of 382 complaints have been reported annually from
Wisconsin authorities, stating that at least one person per day has been investigated for unborn
child abuse (Wisconsin Watch, 2002). There is not public data available that shows the records
of pregnant women being incarcerated due to noncompliance. A recent investigation found that
more than 50 women have been charged with child neglect or manslaughter after testing positive
for use of illegal substance following stillbirth or miscarriage (Wisconsin Watch, 2022). There
has been a debate within the Wisconsin legislation about this law being unconstitutional and
taking away the rights of women. Wisconsin faced two high-profile challenges since the law has been enacted. One of the
challenges was Loertscher’s v. State of Wisconsin; this was the most successful because it
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secured that a federal court ruling the law unconstitutional (Wisconsin Watch, 2022).
Unfortunately, the ruling was overturned and the law remains in effect today. Human Rights Aside from the fact that the law is unconstitutional, it undermines rather then advances in
health in Wisconsin, putting at risk pregnant women and their unborn child (Pregnancy Justice,
2022). Punishing pregnant women who are currently using drugs or alcohol or who have
previously used discourages them from seeking treatment in needed or prenatal care. The law in
Wisconsin allows to control people throughout their pregnancy, it is more enforced against
communities who are low income, drug-using women and women of color (Pregnancy Justice,
2022). This law indeed is dangerous to every pregnant person in the state of Wisconsin; it applies
even before a person knows she is pregnant. The law does not allow pregnant women time to
seek treatment once they find out they are pregnant; instead they are forced to follow the state’s
law without having a say. This denies pregnant woman their freedom and individual liberty. To
improve this act, there should be patient and medical provider confidential relationship; this
would ensure that pregnant women feel secure when being seen by their doctor. There should be
programs that offer pregnant women resources available to seek treatment without being
punished and taken away their rights. Justice The law does benefit the fetuses but not the soon to be mothers in the state of Wisconsin.
I do not believe it is a fair law because it is affecting the well being and taking away the rights of
the soon to be mother. The law is preventing pregnant women to seek medical care to continue
with a healthy pregnancy throughout the nine months phase without being persecuted by the
state. Opponents of the bill focused on the negative effects that this law would likely have on
5
public health. The City of Milwaukee Health Department expressed concerns regarding that the
law would stigmatize substance use and dissuade pregnant people, who would fear punishment
under the Act, from seeking medical care (UW Core, 2022). The department was concerned that
pregnant women would be discouraged from seeking alcohol and drug treatment, affecting
mainly low income communities. Paternalism
This policy is very paternalistic; it is controlling pregnant women throughout their
pregnancy. It is mandating them what to do, how to do it and if not what repercussions they
would have. “This early intervention allows for a potentially safer environment for when the
child is born” (Wisconsin Watch, 2023). But the law is more condemned to be a punitive
approach than creating a safer environment. Not only is safety of the unborn child at risk but also
the soon to be mother. The enforcement of the law many times falls on the hands of people who
have no experience of dealing with a pregnancy, who believe are right by enforcing this law and
applying it to women who instead of helping them to obtain medical treatment without scaring
them away are punishing them. Conclusion There should be laws that protect the well being of an unborn child but with limitations to
what extent the law punished pregnant women. It is the duty of lawmakers to step in and make
an effort to protect the fetus, but it should not mean taking away women’s rights by denying
legal representation, arresting and locking them up or being called a criminal. Instead the proper
support should be provided for pregnant women to feel safe in a place, where they can receive
the medical help and treatment necessary to ensure mother and child are healthy. 6
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References
Centers for Disease Control and Prevention. (2023). Polysubstance Use During Pregnancy. Accessed at https://www.cdc.gov/pregnancy/polysubstance-use-in-pregnancy.html
DeVille, K., & Kopelman, LM. (1999). Fetal Portection in Wisconsin’s Revised Child Abuse Law: Right Goal, Wrong Remedy. Journal of Law, Medicine and Ethics 27(4), 332-342. Accessed at https://heinonline-org.ezproxy.montclair.edu/HOL/Page?
handle=hein.journals/medeth27&div=49
Meinhofer, A.
,
Witman, A.
,
Maclean, J. C.
, &
Bao, Y.
(
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).
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.
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https://doi.org/10.1002/hec.4518
Linder, E. (2005). Punishing prenatal alcohol abuse: the problems inherit in utilizing civil commitment to address addiction. University of Illinois Law Review, 3(2005), 873-902. Accessed at https://heinonline-org.ezproxy.montclair.edu/HOL/Page?
handle=hein.journals/unilllr2005&div=37
Social Justice. (2022). Wisconsin’s “Unborn Child Protection Act “ (Act 292). Accessed at https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/WI-act-292-12-12.pdf
UW Core. 2022. Wisconsin Unborn Child Protection Act: Implementation and Consequences. Accessed at https://core.wisc.edu/wp-content/uploads/sites/1349/2022/01/Act-
292_March-2022_rev.pdf
Wisconsin Watch. (2022). An ugly enforcement: Wisconsin’s fetal protection law allows detention of pregnant women for alcohol use. Accessed at 7
http://www.milwaukeeindependent.com/syndicated/ugly-enforcement-wisconsins-fetal-
protection-law-allows-detention-pregnant-women-alcohol-use/
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