Wisconsin Woman Arrested, Detained under State’s ‘Fetal Protection’ Law

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Home / Wisconsin Woman Arrested, Detained under State’s ‘Fetal Protection’ Law

What rights does a pregnant woman have as an individual, and what rights does her unborn baby have? Image by mahalie stackpole.

What started off as a routine prenatal examination at a clinic, ended up with the arrest of Alicia Beltran, 28. Officials eventually detained her, and ordered her into a drug treatment program. As a result, Beltran is challenging the constitutionality of Wisconsin’s fetal protection law.

Drugs and Pregnant Moms: Beltran Previously Addicted to Percocet

Beltran was 12 weeks pregnant on July 2, 2013 when she went to a clinic for a prenatal exam. She met with a physician’s assistant (PA) who asked her to provide her medical history. The 28-year-old complied.

The history she revealed was her previous addiction to the painkiller, Percocet. Beltran told the PA that she had used the drug Suboxone to wean herself off Percocet, then weaned herself off Suboxone as well.

Beltran told the physician’s assistant she had no health insurance, so she got the Suboxone from an acquaintance. When the PA suggested Beltran continue to take Suboxone under a doctor’s care, she refused. The PA then asked her to provide a urine sample and again Beltran complied. The sample revealed there was Suboxone in her blood, but no trace of any other drug.

Beltran thought that was the end of it. But it was only the beginning.

Beltran Arrested, Brought Before Judge

Two weeks later, a social worker visited the 28-year-old, and insisted Beltran continue to take Suboxone under the care of a physician. Beltran again refused. Two days after the visit, five police officers showed up at Beltran’s residence, handcuffed her, and took her to a hospital. A medical examination determined both she and the fetus were healthy. The doctor did not feel any additional medical help was warranted. After the hospital examination, Beltran was detained in a county jail prior to being brought before a judge. The judge refused to appoint a lawyer for her even though the court had appointed a lawyer to represent her unborn baby.

The judge ordered Beltran to spend 90 days in a drug treatment center.

Wisconsin’s Fetal Protection Law

Wisconsin’s state legislature enacted the Fetal Protection Law in 1997. Section 48.133 of the Children’s Code reads as follows:

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.

Supporters of the law, including those who drafted the Wisconsin legislation, argue that child abuse is child abuse whether it occurs in or out of the womb. The purpose is to protect children, and if social services can take babies after birth to protect them, the same should apply to a fetus.

Although 38 states have laws that define a fetus as a human being for purposes of assaults against pregnant women by third parties that result in injury or death to the fetus, these laws are being used more and more to take action against mothers who smoke, drink and use banned substances that can harm the unborn child.

Opponents of these laws argue prosecuting pregnant women is a slippery slope that could result in reducing the right of pregnant women to obtain abortions. Others, such as the American Congress of Obstetricians and Gynecologists, argue that women who seek medical treatment should not be put at risk of criminal and civil complaints. These laws deter women from visiting doctors if they know their medical information can be given to law enforcement authorities. Lack of medical care during pregnancy puts the fetus at risk.

Beltran’s matter has not yet come up for trial. Although the baby appears healthy and she had no traces of Percocet in her body when examined, she does fall under the section and the damage has already been done. She was jailed and forced into an in-patient drug treatment center for 90 days.

Despite the fact, the court would not appoint a lawyer to act for her, she found counsel. Her lawyer filed an application for habeas corpus (a request for a hearing) in U.S. District Court in Milwaukee in September, arguing that the section of the Wisconsin law is unconstitutional.

Although the state has taken action against a few pregnant women in the state each year since the law was passed, this is the first time anyone has challenged its constitutionality.

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