Wisconsin case addresses right to counsel for confinement of pregnant women
10/26/2017, Litigation, Civil Commitment
A Wisconsin law permits the state to civilly commit a pregnant woman or subject her to treatment against her will if the state believes the woman is using drugs or alcohol to a "severe" degree. While the law provides the woman with a right to counsel at the hearing at which she may be placed outside in her home, she does not have a right to counsel when such a petition is first filed (contrary to a civil commitment for mental health reasons), nor does she have a right to counsel when she is first detained.
On behalf of a woman named Tamara Loertscher, National Advocates for Pregnant Women filed a federal lawsuit challenging the confinement law on a number of grounds, such as violations of the First and Fourth Amendments, and the complaint also alleges equal protection violations relating to numerous provisions of the law, including the right to counsel provisions. The lawsuit was covered by Slate and RH Reality Check, while an earlier lawsuit involving a different Wisconsin plaintiff was discussed by the New York Times.
On April 28, 2017, a federal district court in Wisconsin enjoined the Act on grounds it was unconstitutionally vague. After the state appealed to the Seventh Circuit, the NCCRC filed an amicus brief in support of the right to counsel. The Seventh Circuit then held that the case is moot since Ms. Loertscher moved out of state.
Urban Milwaukee has more on the appeal, while Courthouse News covered the Oct 26 oral argument and the judges' interest in the right to counsel issue. Read more about the case in our comprehensive bibliography. You can also read an issue brief about the case.
NCCRC helped frame the right to counsel component of the case and filed an amicus brief.