United States District Court, W.D. Wisconsin
TAMARA M. LOERTSCHER, Plaintiff,
ELOISE ANDERSON, BRAD D. SCHIMEL, and TAYLOR COUNTY, Defendants.
OPINION & ORDER
D. PETERSON District Judge
1997 Wisconsin Act 292, Wisconsin's juvenile courts may
treat an unborn child of any gestational age as a child in
need of protection or services if the “expectant
mother's habitual lack of self-control in the use of
alcohol beverages, controlled substances or controlled
substance analogs, exhibited to a severe degree, [poses] a
substantial risk” of harm to the unborn child.
Wis.Stat. § 48.193.
Tamara M. Loertscher filed this case when she was an
expectant mother subject to a state-court child in need of
protection or services order issued under the authority of
Wisconsin's Children's Code, as amended by Act 292.
Following a report of unborn child abuse, Loertscher was
detained for several days in a hospital, and later
incarcerated for contempt of the juvenile court for 18 days,
until she signed a consent decree requiring her to submit to
drug monitoring and treatment by county authorities. She gave
birth in January 2015. Her consent decree has since expired,
and all proceedings against her have terminated. But
Loertscher persists in her challenge to Act 292, which she
contends is unconstitutional both facially and as applied to
brings this case under 42 U.S.C. § 1983, which
authorizes suits in federal court to redress violations of
federal constitutional rights by state actors. Loertscher
contends that the Act is void for vagueness and that it
violates her substantive due process rights, procedural due
process rights, First Amendment rights, Fourth Amendment
rights, and right to equal protection. She asks this court to
declare Act 292 unconstitutional and to enjoin its
enforcement. Loertscher also seeks money damages from Taylor
County for its hand in enforcing Act 292 against her.
before the court are the parties' motions for summary
judgment, which address each of the constitutional issues in
the case. But the court will decide only two of these issues,
which will dispose of this case.
the court concludes that the Act is void for vagueness, and
it will grant Loertscher's motion for summary judgment on
that basis. At the heart of the Act are two concepts:
“habitual lack of self-control” and
“substantial risk to the physical health of the unborn
child.” Both concepts are essential components of the
jurisdictional and substantive standards in the Act. But, for
reasons explained in this opinion, neither of these concepts
is amenable to reasonably precise interpretation. Thus, the
Act affords neither fair warning as to the conduct it
prohibits nor reasonably precise standards for its
enforcement. The court will enjoin enforcement of the Act
statewide. Because Loertscher will get the injunctive relief
she requests as a result of this ruling, the court need not
reach the other difficult constitutional questions raised by
the parties' motions. The Act's other potential
constitutional problems may be ameliorated if its
jurisdictional and substantive standards are drawn with
the court will grant summary judgment in favor of the County
as to Loertscher's claim against it under Monell v.
Department of Social Services of New York, 436 U.S. 658
(1978). Loertscher has failed to show that the manner in
which the Act was enforced against her can be traced to
decisions by the County itself. As a consequence of this
decision, Loertscher is not entitled to monetary damages.
where noted, the following facts are undisputed.
Wisconsin's Children's Code, the Department of
Children and Families and county social service departments
are responsible for protecting children who are being abused
or neglected. If the county social service department deems
it necessary, such a child may be the subject of a petition
concerning a child in need of protection or services-
commonly known as a CHIPS petition-filed with the juvenile
court of that county. If the court grants the CHIPS petition,
protective services may be ordered for the child. In severe
cases, the child may be removed from the parents' home
and placed in protective custody.
1997, the Wisconsin Supreme Court held that Wisconsin's
Children's Code did not authorize a juvenile court to
exercise jurisdiction over an adult pregnant woman in
connection with a CHIPS proceeding. See State ex rel.
Angela M.W. v. Kruzicki, 209 Wis.2d 112, 561 N.W.2d 729
(1997). And so the legislature set out to change that, by
passing 1997 Wisconsin Act 292 (the Act).
the legislature passed the Act, the Wisconsin Legislative
Council warned the legislature that extending the Act to
“all stages of pregnancy” would render its
constitutionality “highly doubtful.”
Dkt. 179-2, at 2 (emphasis in original). And the Wisconsin
Division of Children and Family Services (now the Department
of Children and Families), the Division of Public
Health's substance abuse bureau, and the City of
Milwaukee Health Department opposed the Act. Specifically,
the DCFS feared that the Act would scare women away from
treatment and vital prenatal care, and the City of Milwaukee
Health Department opposed the Act in light of “the
serious potential [the Act] has for reducing the length and
quality of prenatal care in this state, thereby negatively
affecting the health of mothers and children.” Dkt.
179-3, at 2. Both organizations were concerned that “a
criminal justice approach to maternal and child health is not
the best alternative, that it is destructive, and that
readily available drug and alcohol treatment for expectant
mothers would be preferable to threatening mothers with
incarceration and loss of paternal rights.” Dkt. 218,
of the foregoing, the legislature passed the Act, and it went
into effect in June 1998.
grants juvenile courts jurisdiction over “an unborn
child” and the “expectant mother” when the
mother “habitually lacks self-control in the use of
alcohol beverages, controlled substances or controlled
substance analogs, exhibited to a severe degree, to the
extent that there is a substantial risk that the physical
health of the unborn child, and of the child when born, will
be seriously affected or endangered unless the expectant
mother receives prompt and adequate treatment for that
habitual lack of self-control.” Wis.Stat. §
48.133. The Act extends various aspects of the Children's
Code to unborn children in need of protection or services;
the court will highlight a few. The Act allows those who
enforce it to take a pregnant woman into custody. §
48.193. The Act allows those who enforce it to hold a
pregnant woman in custody if there is “probable cause
to believe that the adult expectant mother is within the
jurisdiction of the court, ” and to believe that the
woman “is refusing or has refused to accept any alcohol
or other drug abuse services offered to her or is not making
or has not made a good faith effort to participate in any
alcohol or other drug abuse services offered to her.”
§ 48.205(1m). The court may appoint a guardian ad litem
to “advocate for the best interests of” the
unborn child and “[m]ake clear and specific
recommendations to the court concerning the best interest of
the . . . unborn child at every stage of the
proceeding.” § 48.235(3). The court may order a
pregnant woman to submit to inpatient alcohol or drug
treatment. § 48.347.
Child Protective Services Access and Initial Assessment
Standards (CPS Standards), drafted by the Department of
Children and Families, guide child protective services
caseworkers when they screen, investigate, and assess reports
of child abuse. The standards provide that an agency that
receives a report of unborn child abuse must document the
report and make a screening decision-i.e., whether to dismiss
the report or pursue it. The screening standard is whether
there is reasonable suspicion that the woman is pregnant,
that her behavior indicates “a habitual lack of
self-control . . . in the use of alcohol, controlled
substances or controlled substance analogs to a severe
degree, ” and that the abuse could cause physical harm
to the unborn child or a risk of serious harm to the child
when born. Dkt. 169-1, at 23.
report is screened in, the case is assigned to a county
initial assessment worker for investigation and assessment.
The individual will gather the following information from the
Verification of pregnancy or information to support that the
woman or girl is pregnant and, if possible, what month of the
pregnancy she is in.
A description of the substances and quantity of substances
she is alleged to be using.
A description of the behaviors that lead the reporter to
believe that the expectant mother is demonstrating a habitual
lack of control or that her substance abuse is exhibited to a
The history of her substance abuse, treatment received and
previous children who were born with the effects of alcohol
or other drugs used during pregnancy.
A description of the prenatal care the expectant mother is
receiving, if any, and the name of the doctor and medical
clinic where she receives services.
A description of the expectant mother, highlighting
individual functioning and her parenting practices, if other
children are residing in the household.
Id. at 16.
County enforcement of the Act
program is state supervised and county administered in 71
counties, including Taylor County. The CPS Standards are
designed to control county-level decisions as employees
navigate unborn CHIPS (UCHIPS) reports from beginning to end.
Between 2005 and 2014, 3, 326 reports of unborn child abuse
were “screened-in” under the Act, and 467 of
those reports were substantiated.
2014, Loertscher was 29 years old and living in Taylor
County, Wisconsin. Loertscher had radiation treatment in her
teens that left her without a functioning thyroid: she
suffers from hypothyroidism and cannot produce thyroid
hormones without medication. When she does not take her
thyroid medication, Loertscher experiences severe depression
and fatigue. Loertscher believed that her hypothyroidism
would make it difficult, if not impossible, for her to get
was unemployed in February 2014, which left her unable to pay
for her thyroid medication. And so she sank into depression.
In late February or early March 2014, Loertscher began using
methamphetamine two to three times per week to “help
her get out of bed in the morning.” Dkt. 218, ¶
74. Loertscher was also using marijuana at that time.
early July 2014, Loertscher suspected that she might be
pregnant, took a home pregnancy test, and received what
appeared to be a positive result. Yet Loertscher continued to
use methamphetamine. Loertscher took a second pregnancy test
on July 30, received a positive result, and “believed
for the first time that she might actually be
pregnant.” Id. ¶ 84. (Defendants dispute
that Loertscher did not believe that she was pregnant until
then, pointing to Loertscher's admissions to medical
staff that she had “cut back” her drug use after
taking the first pregnancy test and that she knew that she
was taking illicit drugs while pregnant.)
days later, Loertscher went to the Taylor County Department
of Human Services (TCDHS) to confirm her pregnancy and to
receive treatment for her thyroid condition. TCDHS personnel
told Loertscher to go to the Eau Claire Mayo Clinic Hospital
emergency room, and she did. When she arrived, Loertscher
explained that she needed medical and psychiatric care, that
she believed that she was pregnant but wanted confirmation,
and that she wanted to make sure that her baby was healthy.
Loertscher provided a urine sample, and testing revealed a
positive pregnancy and “unconfirmed positives”
for methamphetamine, amphetamine, and THC (marijuana). The
emergency room doctor told Loertscher that drug use is bad
for a baby, and Loertscher indicated that she wanted to stop.
Loertscher wanted to have a healthy baby and to take care of
evening, Loertscher was voluntarily admitted to the Mayo
Clinic Behavioral Health Unit. The next morning, Mayo Clinic
personnel gave Loertscher the thyroid medication she needed.
A psychiatrist informed her that her thyroid stimulating
hormone levels were very high and that healthy thyroid
function was important to ensure a healthy pregnancy. The
psychiatrist asked Loertscher about her past drug use, and
Loertscher stated that she had been self-medicating with
marijuana and, primarily, methamphetamine. Loertscher
emphasized that she had been using the drugs before she knew
that she was pregnant. (Again, defendants dispute this point,
pointing to medical records from that time that indicate that
Loertscher knew she was pregnant as she continued to use
that evening, Loertscher met with Jennifer Bantz, an
obstetrician at Mayo. Bantz showed Loertscher ultrasound
images of her fetus and told her that the baby looked fine.
Bantz asked Loertscher about her alcohol use, and Loertscher
explained that she drank a small amount of alcohol during her
pregnancy, before she knew she was pregnant.
medical records from that time indicate that she “has
polysubstance abuse, ” that she cut back her
methamphetamine use to “perhaps once or two times a
week” after “she found out that she was pregnant,
” and that she suffers from methamphetamine dependence,
marijuana dependence, and alcohol abuse. Dkt. 184-7, at
Mayo reports Loertscher to the County
days later, on August 4, while Loertscher was still in the
hospital, Corinna Everson, a Mayo social worker, contacted
the TCDHS to report that Loertscher was three months
pregnant, had tested positive for methamphetamine,
amphetamine, and THC, had “used alcohol during her
pregnancy as well, to the point of blacking out, ” and
had confirmed that she had used drugs while pregnant. Dkt.
169-4, at 6. Everson reported that a Mayo physician had
stated that Loertscher's behavior was putting her fetus
in serious danger of harm.
employees “screened” the Mayo report that day. An
intake worker screened in Loertscher's case and assigned
it to TCDHS social worker Julie Clarkson. The intake worker
did not contact a physician or review Loertscher's
medical records when she decided that the County would
investigate and assess the report.
began her investigation by contacting Everson to gather more
information. Clarkson's notes indicate that Loertscher
had been diagnosed with “Major Depressive Disorder with
Recurrent psychosis-NOS, meth dependence, marijuana
dependence and alcohol abuse, ” although it is unclear
where Clarkson got that information. Id. at 12. At
12:30 that afternoon-August 4, 2014-Clarkson, TCDHS Deputy
Director Liza Daleiden, and Mike Sanderson (an Alcohol and
Other Drug Abuse counselor) decided to recommend that
Loertscher be placed in an inpatient treatment facility.
continued her investigation to substantiate the alleged
abuse. Applicable state guidelines from the Department of
Children and Families instruct child protective services
caseworkers to gather information regarding (1) “[t]he
unborn child's fetal development as reported by a
physician”; (2) “[t]he expectant mother's
current use of substances and the impact it is having on her,
the unborn child and, when applicable, other children in her
care”; and (3) “[a]ny substance abuse history and
treatment, criminal history, and, when applicable, any
history of other children born with the effects of alcohol or
other drugs used during pregnancy.” Dkt. 179-8, at 5-6.
Clarkson requested Loertscher's medical records from
Mayo, which stated that she had “polysubstance abuse,
” that she used methamphetamine daily but decreased her
use to “perhaps once or two times a week” after
she “found out that she was pregnant, ” and that
she knew she was pregnant when she continued to use
methamphetamine. Dkt. 184-7, at 36-37, 42. (Loertscher
disputes this and maintains that she did not know, for sure,
that she was pregnant when she was using.)
p.m., Clarkson called Loertscher and informed her of the open
investigation. Clarkson told Loertscher that if she did not
agree to voluntarily receive AODA treatment, the TCDHS may
request to take Loertscher into temporary physical custody.
Around 40 minutes later, County personnel had completed a
temporary physical custody request.
same day, Loertscher met with a hospital social worker.
After, Loertscher told hospital staff that she did not want
to speak with the social worker again, “because the
social worker had been judgmental and unhelpful.” Dkt.
218, ¶ 128. Loertscher then told staff that she wanted
to leave. But a nursing manager told Loertscher that she
could not leave because there was a “hold” on
her. In the meantime, the County had appointed a guardian ad
litem (GAL) to act on behalf of Loertscher's fetus.