Previous diary in the series
I hate hypocrisy. As terrible as Donald Trump is, in some ways he is better than the other Republican presidential candidates, because sometimes he says clearly and openly the true policy goals of the Republican party. His statements last week that women seeking abortions should be criminally punished was no exception. The fact that “Pro-Life leaders” immediately denounced this statement is insulting both to the intelligence of the American voter and to the women currently convicted of crimes against their own fetus.
I started a series of diaries to showcase the women who have been put in prison for harming or threatening to harm their fetus. Some are victims of laws written specifically to protect the unborn, others of laws that were written to protect children that were twisted and perverted by overzealous politicized prosecutors and judges. None of them would have been in jail more than ten or fifteen years ago, before pro-life groups showed they had the will and the political power to vote for their pet issue over all concerns of decency or humanity.
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In Franz Kafka’s The Trial (1925), a man is arrested by unidentified agents for an unspecified crime, and he travels secret courtrooms in dark attics to try somehow to defend himself from these secret charges. It is a masterwork of paranoia, fear and helplessness in a monstrous leviathan of unfeeling bureaucracy rarely equaled in modern literature. Tamara Loertscher’s journey through the American justice system makes Franz Kafka look like John Grisham.
When 30-year-old Loertscher first learned she was pregnant, she immediately made an appointment at a hospital in the next few days for a prenatal checkup, and for treatment for depression and hypothyroidism. Although she had recently used marijuana and methamphetamine casually, she was not an addict, and quit as soon as she learned she was pregnant. When her urine test showed evidence of her recent drug use, Loertscher was called into a hearing with a judge by phone.
In 1998, Wisconsin enacted a “Cocaine Mom Law,” meant to protect unborn babies from mothers addicted to alcohol or controlled substances. Aimed at habitual users without self control, the law should never have been used to jail a mother simply for failing one drug test.
48.133 Jurisdiction over unborn children in need of protection or services and the expectant mothers of those unborn children. The court has exclusive original jurisdiction over an unborn child alleged to be in need of protection or services which can be ordered by the court whose expectant 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. The court also has exclusive original jurisdiction over the expectant mother of an unborn child described in this section.
In her two hearings, Loertscher asked for an attorney, but was refused one. Her fetus, however, was assigned a guardian ad litem. Loertscher refused to submit to in-patient treatment because she was not a drug addict and had stopped using drugs. So the court jailed her for contempt of court.
Inside jail, Loertscher was not allowed to keep two scheduled prenatal visits with her doctor. The only doctor she was allowed to see was the jail-appointed doctor, who was not an OB-GYN and did not provide any kind of ultrasound or prenatal care. Due to the stress of jail, including three days in solitary confinement with nothing but a roll of toilet paper, Loertscher began experiencing cramping and was worried about her baby.
“The field doctor told me if I decided to miscarry, there was nothing to do about it anyway,” Loertscher told reporters, starting to cry. “It was really awful.”
Loertscher spent seventeen days in jail, fighting to give her baby the care that the state was preventing her from receiving, all in the name of protecting the unborn fetus. After finally being released, despite repeated tests showing that Loertscher had indeed remained drug free from the time she first learned she was pregnant, the state brought charges against her again, this time for child abuse. This time, Loertscher did have an attorney representing her, and the charges were eventually dismissed.
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I wanted to give a shout out to this blog, posted last week on the same topic, that lists a dozen examples from across the country of women in prison for fetus harm, including some places I would not have expected, like New York and Massachusetts.