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


Home / Wisconsin Woman Arrested, Detained under State’s ‘Fetal Protection’ Law
Is detaining a pregnant woman without access to legal counsel constitutional? Image courtesy of the U.S. National Archives

Is detaining a pregnant woman without access to legal counsel constitutional? Image courtesy of the U.S. National Archives

Wisconsin Law is Unconstitutional: Arguments

The first argument raised by Beltran is that the law is vague. Parents, social service employees, and law enforcement officials cannot precisely define terms in the section such as “habitually lacks self-control” to a “severe degree,” only guess at them. Even intelligent people guessing can lead to an arbitrary loss of liberty that violates the Due Process Clause. Officials detained Beltran even though tests revealed she had no controlled drugs in her system and the fetus was normal and healthy.

The expectant mother is also arguing the procedural safeguards in the law are insufficient. The right to counsel is absent and the court does not provide the person with the specific allegations against them. Nor was she given the opportunity to present evidence or refute the evidence against her.

The standard of proof for detaining someone is less than the constitutional requirement of “clear and convincing evidence.” For these reasons, her lawyer argues section 48.133 breaches the Due Process Clause of the Fifth and Fourteenth Amendments.

Beltran is also arguing her right to privacy has been infringed. She was forced to undergo medical treatment she did not want and had her confidential medical information given to law enforcement officials.

She is also arguing her right to the sanctity of her familial relationships and custody of her children has been violated. Her parental rights to her child were terminated before the baby was even born.

The fourth argument raised by Beltran is that the law breaches the Equal Protection Clause by singling out women. This law threatens women with monitoring, having guardians appointed, and arrest and detention.

Although gender-based laws can be constitutional, there must be “exceedingly persuasive justification” for such laws and this law fails because there is not a sufficient governmental interest and the law has not been properly tailored.

Even if a law distinguishing between pregnant and non-pregnant women is justified, the law still breaches the Equal Protection Clause because the health of the fetus is not furthered by the arrest and detention of the pregnant woman.

Beltran is also arguing the law is penal and therefore subject to the Eighth Amendment’s Cruel and Unusual Punishment Clause. She was incarcerated although she was never convicted of an offense. Her lawyer further argues the clause was breached because of the indifference to her medical needs. The institution the judge ordered for her detention does not provide prenatal medical care, something she needs and sought out prior to being arrested.

The sixth argument raised is that officials breached Beltran’s Fourth Amendment rights to be free from unreasonable search and seizure. The violation occurred by non-consensual medical examinations and release of her confidential health information by medical personnel who were acting as agents for the state. It is argued these searches were conducted without probable cause an offense had been committed.

Finally, Beltran is arguing although she was arrested and detained, she was neither given her Miranda rights nor told she had the right to counsel.

Fetal Protection or Misguided Regulation?

Beltran is expected to give birth in mid-January, 2014. What will happen in court? Only time will tell.


NBC News. Shackled and pregnant: Wis. Case challenge to ‘fetal protection’ law. (2013). Accessed October 30, 2013.

New York Times. Case Explores Rights of Fetus Versus Mother. (2013). Accessed October 30, 2013.

Wisconsin State Legislature. Chapter 48, Children’s Code. (2013). Accessed October 30, 2013.

Advocates for Pregnant Women. Alicia Beltran v. Jamie Loenish et. al. (2013). Accessed October 30, 2013.

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