by Cynthia Soohoo, co-director, Human Rights and Gender Justice Clinic at CUNY School of Law and Risa E. Kaufman, Director of U.S. Human Rights, Center for Reproductive Rights
How far can a state go in restricting a woman’s constitutional rights under the guise of protecting a fetus? The Seventh Circuit will soon have the opportunity to answer this question when it issues its much-anticipated decision in Loertscher v. Anderson. The case challenges a Wisconsin law that allows child protective services to take a pregnant woman into custody to protect her “unborn child,” from “the time of fertilization to the time of birth,” based on concern that the woman’s purported use of alcohol or controlled substances poses a “substantial risk” to the physical health of her “unborn child.”
Wisconsin’s law is unique in that it places a woman in the custody of child protective services. However, several other states allow or promote use of civil commitment laws to detain pregnant women. Civil statutes that detain pregnant women to prevent future substance use and force them to undergo drug treatment raise serious constitutional issues related to a woman’s right to liberty, privacy, personal autonomy, and non-discrimination.
As we argue in a new ACS Issue Brief, they also violate core human rights principles.
