Phoebe Petrovic’s beat at Wisconsin Watch, the nonprofit news arm of the Wisconsin Center for Investigative Journalism, focuses on threats to civic equality for women and LGBTQ people. Reproductive justice is a big piece of that.
So when the Dobbs decision was leaked, effectively confirming that the U.S. Supreme Court was on the verge of tossing federal protections for abortion, Petrovic and her editors started brainstorming abortion-related coverage. She says she remembered hearing about a law professor who wrote a book (Policing the Womb) about how states’ regulation over reproduction has not been limited to abortion. In Wisconsin and elsewhere, there are so-called fetal protection laws that allow states to intervene in a woman’s pregnancy if she is suspected of using drugs or alcohol.
Petrovic took the book on vacation for some “light beach reading,” and found references to Wisconsin throughout. Author and constitutional law professor Michele Goodwin has ties to the state; according to her curriculum vitae, she received her undergraduate degree from UW-Madison in 1992, and a doctorate in juridical science in 2000, five years after getting her law degree at Boston College Law School.
“I realized there was this whole other side” to the controversy over abortion, says Petrovic. “Not only are there concerns about how the state legislates terminating a pregnancy, but also keeping a pregnancy.”
In 2014, Dee Hall, managing editor at the Wisconsin Center for Investigative Journalism, wrote about a Wisconsin woman who was challenging the state’s fetal protection law, which allows pregnant women suspected of drug or alcohol abuse to be detained and forced into treatment as well as jail. At the time Hall was a reporter with the Wisconsin State Journal.
Tammy Loertscher had been detained and jailed after confiding past drug use while seeking a pregnancy test and medical help for severe hypothyroidism at Eau Claire’s Mayo Clinic Hospital. She steadfastly maintained, however, that she ceased all drug use once she learned she was pregnant. Loertscher’s challenge was successful, but then overturned on a technicality. After that there was little media coverage. “It was interesting to me that a lot of attention was paid to this law when there were legal challenges to it,” says Petrovic. “Then we sort of forgot about it.” But, she adds, “It’s still in effect. Women don’t know this can happen.”
In light of the renewed focus on abortion, Petrovic decided to track down Loertscher, who now lives in Georgia. She tells Petrovic she is still traumatized by her experience.
I knew about this law but learned a number of remarkable things while reading this month’s cover story by Petrovic. The law was passed in 1997, with bipartisan lawmaker support but with the opposition of the medical community, during the height of the crack epidemic and amid claims that babies born to addicted mothers would suffer brain damage and other long-lasting impacts due to exposure to drugs in the womb. But Petrovic reports that research has since upended that myth, finding no “scientific evidence of unique, certain, or irreparable harm for fetuses exposed to cocaine, methamphetamine, opioids, or cannabis in utero.”
I was also surprised to learn that the fetal protection law was ruled unconstitutional by the federal court that heard Loertscher’s case, but that it remains on the books nevertheless. Attorney General Brad Schimel appealed the decision and an appeals court ruled the injunction on the law moot because Loertscher had left Wisconsin two weeks after the birth of her son, temporarily moving to Hawaii. It’s a factor that appears minor and irrelevant to the case, yet it’s the reason millions of women in Wisconsin remain subject to a law that was found unconstitutional.
We have been actively partnering with the Wisconsin Center for Investigative Journalism since Isthmus returned to print as a monthly in August 2021. We run the condensed version of one of their investigative pieces, which are still hefty at 1,700 words or so, every month. The nonprofit makes all of their content available for free to media outlets, but most stories appear online only.
The Center reached out about a month or so ago to see if we’d be interested in running Petrovic’s piece as the cover in print; it’s longer than our usual cover stories, but we think the piece is worth the space. With abortion now inaccessible in Wisconsin, there could be even more women impacted by the fetal protection law: unable to terminate a pregnancy but also subject to forced treatment or jail if suspected of drug or alcohol use.
With few photos available to accompany the piece, the Center also wondered whether our art director, Tommy Washbush, would be interested in illustrating the piece. He was. Now that’s collaboration.