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Society joins amicus brief in case affecting patient-physician relationship

The Wisconsin Medical Society joined other health care associations in an amicus brief filed last Friday in Loertscher v. Anderson, a case questioning a Wisconsin law long-blamed as negatively impacting the patient-physician relationship and discouraging prenatal care.

Loertscher involves a challenge to 1997 Wisconsin Act 292, otherwise known as the “unborn child protection act.” The law permits Wisconsin courts to order protective services for the unborn child of a pregnant woman who “habitually lacks self-control” in the use of controlled substances or alcohol “exhibited to a severe degree, to the extent that there is a substantial risk to the physical health of the unborn child.” This includes the ability to mandate treatment and other services and even incarcerate pregnant women.

On April 28, 2017, the Federal District Court for the Western District of Wisconsin struck down the law as unconstitutional. The Federal Court ruled that Act 292 is impermissibly vague as to both the conduct that is prohibited and the degree of risk to the unborn child that warrants taking an expectant mother into custody. (See this May 11, 2017 Medigram article for more information about the Court’s decision.) The State of Wisconsin appealed that decision to the Seventh Circuit Court of Appeals, the middle-level federal court.

In an amicus (“friend of the court”) brief filed last Friday, the Society and nine other health care organizations set forth the negative impact Act 292 and laws like it have on the patient-physician relationship and the need to treat substance abuse in pregnant women as a medical condition and not as a character trait warranting punishment.

“The medical and public health communities have long recognized that even when use of alcohol and controlled substances becomes problematic and constitutes a disorder, it is nevertheless a medical condition best addressed through non-punitive, non-coercive medical and public health approaches that protect and respect patient privacy and decision making” the brief states. “The consensus view among health care organizations is to treat drug use during pregnancy as a medical and public health issue and to provide non-punitive and family-centered treatment.”

The brief was filed by the Society, American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Addiction Psychiatry, American Academy of Pediatrics, American Medical Women’s Association, American Nurses Association, American Public Health Association, American Society of Addiction Medicine and the Wisconsin Society of Addiction Medicine.

The law remains in effect pending outcome of this case on appeal.

For more information regarding the Loertscher case or the Society’s judicial advocacy efforts, contact Society General Counsel John Rather, JD.