Informing Consent: Medical Malpractice and the Criminalization of Pregnancy

Michigan Law Review, Apr 2018

Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ duties to obtain informed consent from their patients before administering medical tests. Malpractice liability can deter providers from forcing women into the Child Protective Services system and forestall the use of civil child protective laws to criminalize pregnancy.

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Informing Consent: Medical Malpractice and the Criminalization of Pregnancy

Informing Consent: Medical Malpractice and the Criminalization of Pregnancy Laura Beth Cohen 0 1 0 Thi s Note is brought to you for free and open access by the Michgian Law Review at University of Michgian Law School Scholarship Repository. It has been accepted for inclusion in Michgian Law Review by an authorized editor of University of Michgian Law School Scholarship Repository. For more information , please 1 University of Michigan Law School , USA Follow this and additional works at: https://repository.law.umich.edu/mlr Part of theHealth Law and Policy Commons, Law and Gender Commons, and theMedical Jurisprudence Commons Recommended Citation Laura B. Cohen, Informing Consent: Medical Malpractice and the Criminalization of Pregnancy, 116 Mich. L. Rev. 1297 (2018). Available at: https://repository.law.umich.edu/mlr/vol116/iss7/4 - Since the early 1990s, jurisdictions around the country have been using civil child abuse laws to penalize women for using illicit drugs during their pregnancies. Using civil child abuse laws in this way infringes on pregnant women’s civil rights and deters them from seeking prenatal care. Child Protective Services agencies are key players in this system. Women often become entangled with the Child Protective Services system through their health care providers. Providers will drug test pregnant women without first alerting them to the potential negative consequences stemming from a positive drug test. Doing so is a breach of these providers’ duties to obtain informed consent from their patients before administering medical tests. Malpractice liability can deter providers from forcing women into the Child Protective Services system and forestall the use of civil child protective laws to criminalize pregnancy. Introduction In late July of 2014, Tammy Loertscher stopped using illicit drugs when she realized she was pregnant.1 She had been self-medicating with methamphetamine and marijuana since she lost her job and thus her ability * J.D., May 2018, University of Michigan Law School. I would like to thank all the Michigan Law Review editors who worked on this piece, particularly Mel Cassel, Sally Gu, Sam Jaffe, Paul Hoversten, and Charlie Stewart. I would also like to thank Lynn M. Paltrow, Nancy Rosenbloom, and everyone at National Advocates for Pregnant Women, both for the civil rights work they do on behalf of pregnant and parenting people and for their help on this Note. Lastly, I’d like to thank all of Volume 116, especially the Editorial Board, for giving me such an amazing year. to pay for her much-needed thyroid medication.2 On August 1, she went to the Taylor County Department of Human Services (DHS) for help finding and paying for prenatal care and thyroid treatment.3 DHS sent her to a nearby medical clinic.4 She told the clinic staff that she had used drugs, had a thyroid condition, and suspected she might be pregnant.5 The staff asked her for a urine sample, which she provided.6 She tested positive for methamphetamine, amphetamine, and THC.7 The clinic also determined that Ms. Loertscher had severe hypothyroidism, depression, and fatigue.8 She agreed to enter the Behavioral Health Unit (BHU) for treatment.9 After she was admitted, clinic personnel shared Ms. Loertscher’s medical records with DHS, a branch of the Wisconsin Department of Children and Families.10 While Ms. Loertscher was in the BHU, her social workers repeatedly threatened her with civil confinement if she did not waive confidentiality regarding her medical records.11 They also told her that failure to acquiesce to DHS’s demands would result in her baby being taken away from her upon birth and put up for adoption.12 In the meantime, Taylor County appointed an attorney to be the guardian ad litem for Ms. Loertscher’s fetus.13 On August 4, Ms. Loertscher attempted to leave the BHU but was not permitted to do so because Taylor County had issued a custody order requiring her to stay.14 At the time, Wisconsin had a law that allowed fetuses (and thus women) to be taken into custody by the state if there was evidence of prenatal drug use.15 On August 5, Taylor County convened a phone hearing to determine whether it would detain Ms. Loertscher.16 The hearing included counsel for Taylor County and the fetus’s guardian ad litem, but it did not include legal counsel of any kind for Ms. Loertscher.17 During the call, Dr. Jennifer Bantz, an obstetrician who had briefly met Ms. Loertscher, provided Ms. Loertscher’s confidential medical information to the judge.18 At the end of the hearing, the county commissioner entered a custody order against Ms. Loertscher which required her to remain in a treatment facility for the duration of her pregnancy.19 No evidence was presented regarding harm to the fetus. Defying of the custody order, Ms. Loertscher checked herself out of the clinic on August 7.20 Four days later, her fetus’s guardian ad litem filed a motion for the Taylor County Court to hold Ms. Loertscher in civ (...truncated)


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Laura Beth Cohen. Informing Consent: Medical Malpractice and the Criminalization of Pregnancy, Michigan Law Review, 2018, Volume 116, Issue 7,