A federal judge has ruled that Wisconsin’s so-called ” cocaine mom ” law, which authorizes the state to detain pregnant women who are suspected of drug or alcohol abuse, is unconstitutionally “void for vagueness,” since the standards for its application – including particularly the amount of drug use needed to trigger it – are not sufficiently precise. However, this defect could be easily corrected by employing a well established legal cure, claims public interest law professor John Banzhaf. The Wisconsin law provides that an “expectant mother” can be detained if she “habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, to the extent that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered.”

Federal judge James Peterson held that two terms – “habitual lack of self-control” and “substantial risk to the physical health of the unborn child ” – are not “amenable to reasonably precise interpretation,” thus making the law unconstitutionally vague.


Cocaine unborn child
By KiloByte at en.wikipedia [Public domain], via Wikimedia Commons

Thus, he ruled, that statute unconstitutionally violated the void for vagueness rule because it does not provide “fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement” – i.e. “explicit standards for those who apply them.”

The problem, he explains, is that “a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. . . . A statute is unconstitutionally vague if it fails to provide either fair notice or standards for fair enforcement.”

But the time honored and well established remedy for statutes employing terms which are not clear enough to be readily understood by those who must obey them or apply them is to delegate the task of setting more precise language to an agency with expertise in the area. For example, the Occupational Safety and Health Act provides in general terms that workplace must be reasonably safe, but those vague standards are translated into clear and specific requirements by the Occupational Safety and Health Administration [OSHA]: e.g., exposure to X parts per million of substance Y for no more than Z hours a day.

Similarly, the Food and Drug Administration [FDA] is delegated the task of taking general statutory requirements regarding the safety of drugs into clear standards by adopting rules which apply specific amounts to different drugs. Thus Wisconsin’s vagueness problem might be remedied by having a state agency set standards specifying precise statewide limits for each drug at a level low enough to reasonably insure that exposure would not create a substantial health risk to the unborn child, and specific tests or criteria necessary to determine “habitual lack of self-control.”

The judge concludes that “the experts cannot ascertain with any degree of medical certainty the precise levels of alcohol and controlled substance use that trigger a risk of serious danger to the unborn child,” but that is not necessary to establish a legally enforceable standard because the law allows regulators considerable leeway, especially where safety and health are concerned. For example, experts “cannot ascertain with any degree of medical certainty” that the ability to drive a car is impaired precisely at a blood alcohol concentration of 0.08%. Yet the law permits the setting of 0.08% as a precise standard, one which errs on the side of highway safety, and takes into account the variability in the effect of alcohol on different drivers.