A lawsuit in federal court in Wisconsin challenges government's authority to take a pregnant mother in custody to protect her unborn fetus

New York Family Court Act allows child protective services only towards children in being, who have been already born alive.

Yet, in practice and in reality, that jurisdictional restriction is often violated when CPS pursues mothers for alcohol or substance abuse during pregnancy.

Many states in this country pursue pregnant mothers, in civil and criminal proceedings, seeking their incarceration and involuntary treatment, based on the rights of unborn fetuses which, in the eyes of the government, trumps mother's right to privacy, medical choices, control of her own body and even liberty.

In Wisconsin, a federal civil lawsuit has been filed by Tamara Loertscher who was incarcerated, put in solitary confinement and ordered into involuntary treatment because of disclosure at a prenatal visit that she did, but no longer does, abuse certain substances.   

I reviewed pleadings in that lawsuit available on PACER.gov (many of them are sealed or heavily redacted in view of privacy issues involved).

The government is making, predictably, an argument in favor of the so-called "Younger" abstention which essentially is a loophole for the federal court to "abstain" (refuse) to hear the case of violations of federal constitutional rights because there is a pending state court proceedings meeting a certain criteria where the state is competent to review and resolve the same issues.

Yet, attorneys who represent Ms. Loertscher correctly raised the issue that to qualify for the abstention, state court proceeding must be akin to criminal proceeding, and Wisconsin has not criminalize (yet) "fetal neglect" or "fetal abuse", or abortions, for that matter.

You can also review a list of publications painstakingly put together by the National Advocates for Pregnant Women, including the organization's own comprehensive study published in 2013 as to efforts by state governments to target pregnant women with "fetal protection" measures showing how vicious is the fight by the government across the U.S. targeting pregnant women with "fetal neglect" and "fetal abuse" allegations.

It is very clear that, while Roe v. Wade remains the law, fetal abuse and neglect claims are patently unconstitutional.

It is also very clear that the governments across the United States are using taxpayer money for decades to persecute and incarcerate pregnant women, mostly minority women, often without providing them with legal representation, but providing their unborn fetuses with such representation.

Such efforts can only lead to pregnant women not seeking proper prenatal care for themselves or for the fetuses, for fear of being reported, harassed and incarcerated if they mention prior or current alcohol or substance abuse, and that is contrary to the intended purpose of such "fetal protection" statutes.

I do not encourage drug or alcohol use or abuse during pregnancy.

All I am saying is - at least in New York, the Family Court Act putting a restriction on the jurisdiction of child protective proceedings in court, clearly starts applying only to a "child", meaning "a child born alive", and only to conduct of parents committed after that child was born alive, not during pregnancy.

I also know that often respondents in child neglect proceedings are poor, cannot afford a private attorney and are given assigned counsel who are afraid of their own shadow for fear of not getting a lucrative assignment from the court again.  Insist on your rights if you are targeted for allegations of abuse or neglect of a fetus.  Call ACLU, contact civil rights attorneys who takes cases pro bono.

As Ms. Loertscher's attorneys correctly and properly pled in her pending federal lawsuit, within existing legal tradition, the Younger abstention should not apply to state civil proceedings targeting a woman for fetal neglect or abuse when the U.S. Supreme Court requirement for such an abstention is that the civil proceedings are "akin to criminal proceedings" and if the state law does not criminalize fetal neglect or abuse - nor can it constitutionally do it while Roe v. Wade remains the law.

A more radical approach that federal courts continue to reject is that the Younger abstention is unconstitutional under any circumstances, as the U.S. Congress, in enacting the Civil Rights Act, known as 42 U.S.C. 1983, gave the choice of whether to proceed in state or federal court to redress federal constitutional violations to the victims of such violations and not to federal courts, and any doctrines created by federal courts to not review civil rights cases brought before them constitute a breach of the particular judges' oath of office to support and protect the U.S. Constitution and are in excess of powers given to federal courts by Article III of the U.S. Constitution.  

In other words, federal courts (in my expert opinion) may not amend the Civil Rights Act by "abstentions" to their own jurisdiction, when such jurisdiction is established by U.S. Congress and the choice of forum is given to private individuals alleging violations of their constitutional rights by state governments and by individual state public officials.

It is a long shot before this approach makes any headway in federal courts who entrenched themselves and chilled this particular argument with sanctions against attorneys and litigants who raise it, despite a prohibition on viewpoint and subject matter discrimination under the 1st Amendment.

Yet, at least under the limited approach that Ms. Loertscher's attorneys have chosen, Younger abstention in fetal neglect and abuse cases brought in New York courts may survive a motion to dismiss, and that is all that is needed for at least one lawsuit like this to breach the surface and make the law in this state.

Federal lawsuits against New York courts to stop them prosecuting fetal neglect and abuse (by maintaining child neglect and abuse proceedings for alcohol and drug use during pregnancy) are viable and women so prosecuted should fight back and file these lawsuits.

Nobody will protect your rights if you do not want to protect them yourself.