Court Overturns Ruling Calling for Protection of AtRisk
Unborn
By JUDY PASTERNAK, Times Staff Writer

The Wisconsin Supreme Court announced on Tuesday
that it is the state Legislature's role to decide whether a county can
take custody of a fetus if childprotection officials determine that the
pregnant woman carrying the unborn baby is endangering its health.
The court, in a 43 decision, overruled an appellate
court that had upheld Waukesha County's actions in ordering a fetus of 36
weeks' gestationalong, of course, with its motherto be confined to an
inpatient drug treatment program. A juvenile court judge in Waukesha, a
western suburb of Milwaukee, had ruled that Angela M.W., as she was
identified in court proceedings, was harming the fetus with her continued
cocaine use. The woman, although not charged with any crime, was forced
to stay at the rehabilitation center for three weeks, until she gave
birth to a baby boy.
The case caused an uproar among feminists, public health
professionals, law enforcement and civil libertarians, forcing a debate
over the state's interest in a pregnant woman's behavior.
Robin Shellow, attorney for Angela M.W., called Tuesday's
ruling "terrific." But William Domina, Waukesha County corporation counsel,
said the matter was not closed. Domina said that a state senator
expressed interest in sponsoring a bill that would specifically grant
juvenile courts jurisdiction over viable fetuses. He said he might also
ask the state Supreme Court to reconsider the decision because of the
sharp divisions on the bench.
The appeals court had concluded that Roe vs. Wade, the
landmark U.S. Supreme Court decision that legalized abortion but also
allowed states to enact restrictions in the later trimesters, set a
precedent that permits the Legislature to expand the definition of a
child in need of protection to include a viable fetus.
But the state Supreme Court, in a majority opinion
written by Justice Ann Walsh Bradley, said the appellate court replied to
"a distinctly different" issue than the one posed by the case before it.
Bradley wrote that, whether it had the right to or not,
the Legislature never meant to include fetuses in the law covering abused
and neglected juveniles. "We do not reach the question answered by the
court of appeals," she wrote.
Such a decision would be "bristling with important social
policy issues," Bradley wrote. "We determine that the Legislature is in
a better position than the courts to gather, weigh and reconcile the
competing policy proposals addressed to this sensitive area of the law."
A dissent written by Justice N. Patrick Crooks argued
that the Legislature must have agreed with the appellate court decision
because it did not express disapproval. The Legislature, he noted, did
discuss the state Children's Code during the last session.

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