Court rules pregnant drug abuser cannot be detained to protect unborn child

posted 5-2-97

County officials acted wrongfully when they detained a drug-addicted pregnant woman in order to protect her unborn child, the Wisconsin Supreme Court has ruled.

In a 4-3 decision released in late April, the court said that a fetus cannot be considered a child under the state’s child welfare laws. Some parts of the state’s child welfare laws, including provisions dealing with removing a child from a parent’s custody, would be rendered absurd if a fetus is included in the definition of child, the justices wrote.

The case began when Waukesha County officials took custody of the unborn child in September 1995 and confined the mother-to-be, Angela M.W., who was addicted to cocaine, in a hospital and drug treatment program for the last month of her pregnancy. She gave birth to a boy, who appeared healthy and is now in foster care.

While they acknowledged “the daunting social problem of drug use during pregnancy,” the justices wrote that the case was not about the morality of the pregnant woman’s conduct or the constitutional right to reproductive choice, but about the meaning of child as already defined in Wisconsin law.