In June 1998, the Unborn Child Protection Act (Act 292), also known as Wisconsin’s “cocaine mom law” was ushered through the state’s legislature. Act 292 not only allows Wisconsin to accuse certain pregnant people of “unborn child abuse,” but also allows the state to take physical custody of a pregnant person, assign a lawyer to the embryo or fetus but no lawyer for the pregnant person at important early stages of the proceeding, and force the person into unnecessary drug treatment, psychiatric hospitals, or even jail. According to Act 292, “unborn children have certain basic needs … and [therefore] need to be free from physical harm due to the habitual lack of self-control of their expectant mothers” [1].

This characterization that pregnant people accused of drug use demonstrate a “habitual lack of self-control”, as stated nearly a dozen times in the law itself [1], is up to the discretion of those who enforce the law. In fact, a federal court ruled the law unconstitutional for this reason; the language of the law was so vague that neither the officials who enforce the law nor the pregnant people it affected had fair notice of its meaning or how to enforce it. Yet, due to the actions of former Governor Scott Walker (R) and former Attorney General Brad Schimel (R), the law continued to be enforced. Junk science that has since been debunked fueled the false connection between drug use, pregnancy, and so-called “crack babies” [2].

It’s important to note that Act 292 was put into place after myths about drug use and pregnancy were thoroughly debunked by experts in the field. After more than two decades of research, the idea of the so-called crack baby – i.e., the idea that babies who were exposed to crack or cocaine in utero were being born addicted, and the effects of crack/cocaine exposure resulted in a generation of permanently damaged children [3] – was thoroughly discredited. The idea of the crack baby was based on flawed and inconclusive studies that generated a widespread fear of cocaine or crack use and pregnancy, and more specifically, Black motherhood, due to unrelenting media coverage. Although popular media eventually recognized that the crack baby was a myth, the narrative still persists today [3].

Act 292 was allegedly established in order to protect fetuses from the alleged effects of drugs during development. However, leading health experts and human rights organizations, such as the Wisconsin Medical Association, the American Medical Association, and Amnesty International believed that the coercive nature of Act 292 negatively affected mothers and babies. [9] In support of National Advocates for Pregnant Women’s (NAPW) litigation opposing Act 292, over a dozen leading health and human rights organizations stated that Act 292 is destructive and takes away a pregnant person’s right to physical liberty, medical privacy, bodily integrity, and self-determination. Although the state’s public health and children and family services agencies did not support the law when it passed in1997 [9], Act 292 had the support of anti-abortion activists and organizations. The law continues to have the support of anti-abortion activists, politicians, and organizations to this day. [4, 6]

The “cocaine mom law” serves as a way to not only use concerns over substance use as a pretext for targeting poor women and pregnant people and stripping them of their civil rights, but it also allows law enforcement to treat embryos and fetuses as if they are separate from the pregnant person [4]. Indeed, laws concerned with “chemical endangerment,” “fetal assault,” and “personhood” allow for the novel creation of fetal rights that can result in the prosecution of pregnant people [5]. In establishing Act 292, anti-abortion activists and lawmakers in Wisconsin challenged every right associated with the constitutional personhood of pregnant people [5].

Act 292 also fails to address the infant and maternal health crisis that Wisconsin faces. Wisconsin’s infant mortality rate is among the worst in the country with Black babies in the state nearly three times more likely to die in the first year of life than white babies. [7] Additionally, the maternal mortality rate is nearly five times higher for Black mothers versus white mothers [8]. That Act 292 fails to address these alarming mortality rates speaks to who and what the bill prioritizes – embryos, fetuses, and zygotes over the health and well-being of pregnancies, pregnancy outcomes, and pregnant people.

Since Act 292’s passage in 1998, the law has served as an avenue to control pregnant people’s bodies and deny their liberty. Behind the law’s thinly disguised motive, Act 292 allows for embryos and fetuses to have separate rights from the pregnant person, and can be used to investigate and prosecute pregnant people [5].  Act 292’s harmful history speaks for itself, with more than 1,600 cases referred to the state for investigation just between 2013 and 2016. Wisconsin must immediately stop enforcing this regressive law.

• https://docs.legis.wisconsin.gov/1997/related/acts/292
• https://www.nytimes.com/interactive/2018/12/28/opinion/crack-babies-racism.html
• https://sites.hampshire.edu/popdev/the-mythology-of-addicted-babies-challenging-media-distortions-laws-and-policies-that-fracture-communities/
• https://newrepublic.com/article/115396/how-crack-baby-scare-armed-pro-life-cause
• https://www.amnesty.org/download/Documents/AMR5162032017ENGLISH.pdf
• http://advocatesforpregnantwomen.org/blog/2013/10/first_fed_challenge_to_pregnan.php
• https://www.cdc.gov/nchs/data/databriefs/db295.pdf
• https://www.dhs.wisconsin.gov/publications/p02108.pdf
• http://advocatesforpregnantwomen.org/blog/2017/08/leading_medical_and_internatio.php#more