a very good morning to everyone the first case on today's call is what you're against anderson mr us island of court holding that a plaintiff that has moved out of the state a student to challenge the state's laws and has not cited a single case from any court holding that the commonly used term in act two ninety two or on  threshold matter plaintiff's entire lawsuit is moot because she has no standing due to her move out of the state of wisconsin she was placed up moved out of wisconsin a couple years ago and the only record evidence that she points to another  connections with wisconsin entirely refutes any argument that she has and you continue in connection with the state sufficient to have stand that record evidence which is at her deposition a one seventy four three one somebody far indicates plainly that she has visited wisconsin only one time she's seen left the state a couple years ago and that she has no intention of moving back there is absolutely no record evidence to support her claim in her briefs that she moved out of wisconsin because of this act or that she would move back or is likely to move back or is reasonably possible to move back if this law isn't joined now that if you move out of out you see do you stay because of this or you know because of this but if one looks at the underlying records citation to that it's her deposition testimony at one seventy four to one seventy five there is absolutely no support not even in a suggestion that that is why she moved out of the state of  wisconsin that is just a naked assertion without any record supporting force were ready at the at the summary judgment stage so that is insufficient that then puts her in the same position as a student in the supreme court's camerata case when the student had moved from oregon to florida and the supreme court had no trouble concluding in that case that that move from oregon to florida did last and this is of course been the uniform rule in every case that either side in this case the site that exception applies only in exceptional circumstances where failure to apply the exception would mean the issue would always of be to review that a certainly not the case when you think about that kamerad a category of cases where the case is moot because the plaintiff has moved out of the state because of course if the court holds hate your lawsuit is moot you have no standing because you moved out of state a plaintiff still living in the state would not have that same moon as problem it can make all of the same arguments that you can make so for that reason the rationale of the bidding of you exception does not apply to our situation what are some general wanted somebody moved because a military deployment takes the family to a military base to move back in the future and the supreme court has used terms like reasonably problem so i think the question would be is the move such that it's permanent or is it not just the stationing in the back i think that's a kind of approach that one when you to use if unlike in this case you had a case that was credible evidence that there was a likely possibility or regional probably it will move back to the original state now if there are no for the question of standing i'd like to talk about a bit about the merits of the terms used in act two ninety three to identify the most serious the most harmful substance abuse a bitch will severe lack of self control substantial risks are the typical indeed the best terms to separate serious harmful substance abuse from sporadic less harmful substance abuse that is why they make up the core definition of of addict under the federal controlled substance act make up the definition of those that can be civilly confine under the uniform alcoholism and intoxication treatment  country the sliding scale case by case approach that actually ninety two uses and that all of the statutes that i just referenced use is precisely the approach that the supreme court unanimously blessed in in the peterson case in that case the minnesota supreme court had interpreted a civil confinement statute to have three requirements capitulum misconduct in sexual matters lack of control likelihood of harm to  and i will note again that the supreme court was unanimous in pearson and held that the construction by them in sort of supreme court adopting the very terms that aren't actually ninety two were so clearly not big that the quote destroyed an challenge in light of pearson is not surprising the courts throughout the country including this court have to help time after time that the very terms in actually not too are not big just to take one example the courts she had decision which held that term habitual was not big in the just this year the night circuit sitting in bank in the law doesn't a casino case held at the federal immigration laws term habitual drunkard was not big and of course hundred two is not big for the very same reasons i think it is striking in fact that plaintiffs have not identified any better way that the state could have separated out serious harmful substance abuse from more sporadic less harmful abuse as the supreme court said in the privilege case the big destruction cannot be used as an insuperable barrier to solving a particular problem since the state has used the terms of the art that are most appropriate in this area of law and says there's no suggestion that there's any better terms that could be used that defeats any notion of bigness right there and are these people determined in the first weeks who are these women found to be in need an intake worker who would ever right there there's a there are several steps that happen each of which screen out unjustified cases first a case typically begins with a referral usually by a medical bare barriers in the system and given that many women are not going to be reported given that there are no there there could be lack of proof the could be situations where doctors are unwilling to testify because for whatever reason there will be this  certainly will not cover every woman and every unborn child that could be said could be service but that is the line drawn problem the state had to drop because we don't obviously under inclusiveness is a problem we would like to help every woman who using drugs would lack of self control harming our unborn child but we would want to see to broaden so i think what the state has recently done is it has taken the terms of art that are used in a severe substance abuse area and has channeled them through the  folks to deal with child abuse and i think that makes a lot of sense because of course if a mother is addicted or taking significant amount of drugs while she is pregnant she has the baby and she still taking those drugs are still having those problems should be dealing courts the wisconsin courts they deal with child abuse cases and that is the next into your question roger once the person has been screened in and there are different bad news based upon whether there needs to be a temporary custody or not ultimately this is all funneled through was called some course there was constant chop course that are used to dealing with child abuse and of course in our legal system having courts be the check to see that the legal standards  workers pretty important so if you have a temporary custody situation the the intake worker at most can detain the mother for forty eight hours there's a very tight window that the statute permits before there has to be supervision by the wisconsin courts but there's a lot of goes on before it gets in even the confinement just assume they deal with the intake order i'm not criticizing and just curious is that a pretty important position and i don't they're the ones that offer entirely voluntary service this is that you have to someone screen then as you know potentially meeting the standard they come in they tell they tell the mother hey we've got these voluntary services we can use if if it becomes and it becomes a detention situation that it transitions to a court intake worker those are the people they deal with usually with born children and so those are the people that have the forty eight hour window so there's the the intake there's the the it worker in the county that just offers only voluntary services and there's the court intake worker that is triggered if we have a temporary custody situation a second ago demonstrates that the vast majority of the acts applications are do not deal with involuntary treatment the vast majority deal with voluntary services you need to have the trigger th in order to be able to provide the services that the vast majority of women who interact with the system find valuable and gladly take the district courts face an injunction blocks all of that because once this act is disabled the the cannot be not could be no screening another reason why the facial invalidation is inappropriate here is because the most of the conduct covered by the act is already unlawful i do with illegal controlled substance now this court in the sheehan case where this court upheld as not a costly big betrayal truancy statute faced a similar argument the student said hey i don't because this is a sliding scale habitual i don't know how to comply and what this court said is you shouldn't be truant period so the argument that you are concerned that you don't know how many times you can violate the  like that determines complaints here we have a system that is entirely funneled through the supervision of wisconsin courts in that sort of a circumstance that cuts strongly against any vagueness find if there are no further questions district court was correct in granting summary judgment invalidating the statute as unconstitutionally vague and we asked this court to firm the ruling and the injunction against enforcing act two ninety two act two ninety two is not a benign public health law offering voluntary services as the state would have this court believe the act a statutory scheme that is unique in this country there is no other law like this in another state in which the juvenile courts get jurisdiction over and the power to detain adult women who are carrying a fertilized egg embryo or fetus who are alleged to have used any amount of alcohol or drugs and in a type of child abuse proceeding before a child is born women may be detained or forced into treatment in confidential court proceedings the fact that they're confidential means that there is no way to identify these cases or monitor them in fact when the state thirty six witness was deposed she said the state does not even track how many women are detained against their will under this law the state does not track what types of so called treatment people were forced into when they are detained so when mr tejpal and says that the vast majority of these are not mandated services we simply have no way of knowing and we did extensive discovery here in the states at the do not track that the standard of the law is so vague it's a combination of terms and standards that are so big that wisconsin women cannot possibly know what conditions would subject them to the law also there's a wide range of people empowered to enforce it  heard earlier about the intake workers who are not trained in assessing substance use disorders or what treatment might be appropriate for someone the people empowered to enforce the act lacked any meaningful standards so that arbitrary enforcement has been the result from the few cases that have become public we have seen that including the case of mis later the standards we again in deposition asked of the state witnesses are there particular standards for this type of case that are different from the normal normal child abuse and neglect standards and the answer is no there are only a few pages in the child protective services guide devoted to these act two ninety two type of cases and in those pages there is nothing the testimony shows this in the standards of this there is nothing that tells workers how to determine who should be swept within this law how to determine what appropriate treatment might be all of this happens without a right to counsel for the woman a crucial stages of the proceeding she can be detained for long periods of time without counsel yet  her two year old son guardian ad litum never even spoke to her yet at the first proceeding ed knitted on behalf of the fetus all of the child abuse allegations that have been made against ms later this case is not because ms later has already given birth to her son while the case was litigated pregnancy is a recognized exception under capable of repetition yet evading review the case is also not moot because it is leecher is currently not living in speculation about what statute might be constitutional is not the issue here but any language that tries to take into account the risk of harm risk of physical turns to a fetus and an and a child once born is very problematic as as every one of the medical experts in this case and there were eight who submitted reports as everyone on both sides acknowledged it is impossible to tell for sure what the effects of a certain drug or alcohol for description of drugs which are also included in this law might have so any standard having to do with pregnancy and possible go it is inappropriate for a juvenile court to have the power to deprive adults of their liberty that is a problem though is proceedings  confidential there is no power in a what i would call a normal child abuse neglect proceeding to detain a parent right and here we're dealing with people who the lock reaches as far back as before women even know they're pregnant it reaches as far back as before the medical different definition of a pregnancy fertilized egg which may not even be implanted yet so any wisconsin women of childbearing age and ability could be subject to this law if she's using drugs or alcohol there's you're saying there should be no external protection for the unborn baby regardless of what the mother's behaviors respectfully rahner i don't believe i have said that and didn't wish noise and i'm trying to say that here may be so clearer in my mind is that you're not saying that there are times when then there could be intervention against the mother's will there there shouldn't be intervention government intervention that private the liberty of a particular class of people pregnant women in a in a way that's different from all others for example wisconsin civil commitment law chapter fifty one could be used to try and civilly commit a pregnant woman just as anyone else if that person meets the standards of the civil commitment law in fact act two ninety two allows the court to hear those proceedings to opt for the chapter fifty one civil commitment option if they like in cases where there is what the state would call a severe problem i would like to point out that the state has changed its position rather dramatically during the course of this case in the district court below the state talked about use talked about behavior and now suddenly in the state it's briefing in front of this court and in its state papers to the supreme court and this court said this law only pertains to severe addiction that is not what the state's position was below and the state is using a scare tactic talking about the most outrageous cases in its brief and by the way the two cases they're able to talk about are not part of the record they were not in discovery there were no no documents produced about those cases but but the point is that the state is saying this is mostly a voluntary law we shouldn't worry about it too much in fact when the state tries to minimize how intrusive act two ninety two is of high and pregnant women who are subjected to it and there have been thousands reported and many hundreds who have come under the act the discovery shows us the state says it's voluntary it's entirely voluntary mr sale and said today it's about offers of services but the statutory design itself and the operation of the statute show that as the district court described here any services suggested by child protective authorities come with the threat of a child  constant supreme court would be inappropriate since it's the legislature's job and the certification standards are not met if the state of wisconsin assuming it cares about the health of babies and mothers and families the state of wisconsin wisconsin can continue to do what it does it can offer voluntary services it is not true that they need a child an unborn child abuse proceeding which is a was a brand new thing when this law was written to offer services if they care about the opioid crisis if they care about the health of mothers and babies the state legislature could pass more laws are offering more health treatment providing funding for health care that is voluntary  u the experts in this case of test fired and i can and in particular the report in testimony of dr andre jones who is one of the world's leading experts on the treatment of substance use disorder in pregnant women they all uniformly agree that coerced treatment is not effective the amicus brief by the ten major medical organizations including the american academy of p g pediatrics and the a m a say coerced treatment does not work a kind of course do for you but that risks are unknown as all of the medical experts testified in this case the risk of use of a particular drug or alcohol varies by quantity amount there is by the person women who do everything right wh prefecture credibility of zero given what they are what these physicians are telling the public woman goes into a doctor for her first visit when living she's pregnant she's told to stay away from the stuff and of of course we're going to counsel people that they should have good nutrition when they're pregnant that they should not work in an environmentally toxic environment that did they should not take controlled substances where the the risks are unknown the fact is though also that many of the substances covered by the act two ninety two are legal prescription drugs alcohol but also many of those substances don't cause the harms that are commonly believed to be harm  sweepin every woman who has any kind of past years as in the case of alicia belcher who we cite who brought a hideous proceeding she went to voluntarily to seek health care and acknowledge  overcome a previous dependency on opioids and what happened she was arrested she was shackled she was taken away and detained because somebody in the county decided she had to be in a treatment facilit she was not appointed a lawyer as this act does not provide for the appointment of a lawyer until much later stage and she spent seventy days in a psychiatric hospital by the way not receiving any kind of drug treatment other than counseling  before she was able to find a lawyer and bring in haiti is just proceeding get out there only a few examples known to us because the proceedings are confidential and the records are confidential the ones we know of the three we know of which  including this later were all women voluntarily seeking health care to have a healthy pregnancy for maybe only one time may change the perspective just a little bit you mentioned that there are quite a drunk so those programs are now ensuring you do agree that is absolutely not correct judge ripple the these are not special new programs that were authorized by this statute these are voluntary drug treatment programs that are available that are advertised on the state's website that people can try and get into if they have a substance used to sort of for your view you disagree then with the solicitor general on the on the quite so what's important about the language of the statute here too is that it must be taken in context and it must be taken all together it's impossible to pick out a particular term like habitual a particular term like risk and to evaluate the statute that way the state says plaintive hasn't come up with a better way or a better statute it's not the plaintiff's burden to do that this court is only reviewing this and reviewing the district court's ruling the district court did find that other constitutional rights are are implicated plainly implicated but those those rights of liberty and medical privacy and so forth are not before this court right now the district court has not yet decided  the case is not what your honor because pregnancy is of short duration it fits right into the standard of capable of repetition yet updating review it also could apply to ms later again she has is back in the studio yes she has she has testified she has family here she has visited several times even though she felt harassed and a need to leave the state and and worried about future harm she told the district court and said again in her deposition that she has family ties and that she could certainly be pregnant again in wisconsin and even if she were not using drugs at the time which she has not since she found out she was pregnant with her son was subject of this case even if she were her past behavior could be held against her just like it was for ms beltran so  she is quite right to be concerned about coming to his concert and you know the deposition transcript excerpts you have don't don't show all the tears that were shed when she was asked the question about coming back to this ng and living in wisconsin s additionally the weinstein case from the from the u s supreme court talks about cable repetition super tired case and this court's majors case show us that if there if this is a general policy of the state of the state is certainly going to continue to enforce against women it need not be the same person if this court were concerned that ms leecher might not be back in the state sufficiently  plaintiffs who can effectively challenge the law if it's required that the same person be affected over and over here it's appropriate to uphold the injunction against the statute in  because it may fly to her again it also may apply to someone else because it is a fixed policy i see there at night it's on thank you thank you very much ms room thank you whether the remedies for two people you know out of custody if you're put into custody arse are adequate and sufficient and the second issue were your ship again maybe has taken a hit as to whether in any custody situation is supervised by a wisconsin court in our country supervision by a court is the gold standard of procedure so i think with regard to that the state could not have provided a mor procedure than supervision by a court now with regard to the right of counsel the statute provides for right of counsel regardless of ability to pay if there is some ambiguity as to whether counsel has been in fact provided or is not provided in certain circumstances that i think would be amenable to an as applied situation where if there was a deficiency found on the right to counsel under the statute under the applicable law then it is a much more limited remedy than official inviolate validation of the entire statute would be appropriate and i think that brings me to to one of the four one of the points i want to make on rebuttal which is i think what we've heard here the complaint that plaintiffs have with  statute really has nothing to do with big miss the terms of the statute are the terms of are used in substance addiction harry the problem they have is with the with the public policy disagreement of the statue should not have been acted because plaintiffs like the a m a believe that that substance addiction is better dealt with voluntarily now what's important here and i think you can see this most clearly on page five of the emic it's pretty is they're not really talking about just a limited circumstance  a medical problem not a current kernel problem or silicon fine a problem that is certainly a public policy view one that would of course be quite revolutionary we have we have civil confinement in this country first really addicted folks we also have a criminal system state stay motions it was under speed of there were twenty five cases that are that are potentially involuntary the ones before the court so we had three the over three thousand three hundred versus twenty five so the coach can see the scope over the voluntary aspect of this  you can read those numbers again so the docket entry is docket one ninety three paragraph one eighty nine and that's if you add up those numbers you get three thousand three hundred twenty six screen three thousand three know is the gap there's a more than one hundred to one so it's quite it's quite quite broad and then with regard to the kid with what the injunction does this dispute between us and the plaintiffs about whether the injunction truly cuts off dissent granted our stay while the case was still pending before this court inherent in that state grant was obviously just a one line order is they agreed with our argument that in joining the statute would subject t state and its citizens to your will harm so while of course we don't have a specific fighting for the supreme court i think it's pretty clear that our argument that there would that it would be deeply disruptive can join this entire law carried away with the just of the supreme court with only two of them noting the sense so we were there was i heard an argument that we had to change position because we used the term severely addicted we use the term addicted not in terms of a clinical diagnosis but in the exact same way that the term addict is used in the federal controlled substances act which is a latter which is severe use lack of lack of self control habitual use so the term addict which is the the one that we we used in our brief that they that they attack us for using was just the way that the the federal controlled substances act so obviously the governing statute in this country for controlled substances abuse uses that term and then finally with regard to standing i would ask i would take a look at pages one seventy four and one seventy five of her deposition that is the entirety the entirety of her factual basis for claiming she has any connection with the state of wisconsin i think that your r s will find that there is absolutely nothing there and that what i am concerned about this issue of transitory presence the statute doesn't apply to someone who was simply in the state as a transient or already are and so you could pick somebody up at the bus station changing buses on their harm to the unborn child and i think in discussing this transfer issue i think the court should apply this court's language from higginson which is this is that likely is it likely that miss later has only been in wisconsin one time other than for a deposition in the years since she moved out of state is it likely that should be scooped up at a bus station with no basis for i think that is i deeply speculative and given that the keep over a petition or beauty review exception is a supreme court set and it