Are pregnant women on drugs child abusers?

PA high court to rule on the issue

HARRISBURG — The case of a Clinton County woman who tested positive for drugs and gave birth to a child addicted to drugs will come before Pennsylvania’s Supreme Court next month.

Through this appeal, Pennsylvania’s highest court will determine if a woman’s use of illicit drugs before childbirth constitutes child abuse.

Last year, the unnamed county woman gave birth to an infant in the Williamsport Hospital after testing positive for unprescribed suboxone, marijuana and benzodiazepines.

The infant, referred to in court documents as “L.B.,” spent 19 days in the hospital being treated for symptoms of severe withdrawal from drugs.

Clinton County Children and Youth Services argued the mother’s drug abuse during pregnancy caused her infant to suffer withdrawal symptoms.

In his May 2017 decision, county President Judge Craig P. Miller, presiding over the Clinton County Juvenile Division, ruled that under the state’s Child Protective Services Law, the mother’s actions did not constitute child abuse, though he wrote that they were “deplorable.”

Pennsylvania’s Child Protective Services Law (CPSL) defines child abuse as “intentionally, knowingly or recklessly causing bodily injury to a child through any recent act or failure to act.”

Children and Youth Services appealed the case to a three-judge panel of the Pennsylvania Superior Court, which ruled in an opinion by Justice H. Geoffrey Moulton Jr. that a mother’s drug abuse before childbirth “may constitute child abuse” by making bodily injury to the child after birth likely, but remanded the case to the state Supreme Court for a final decision.

In his concurring opinion, Justice Eugene B. Strassburger III questioned whether treating women addicted to drugs as child abusers would actually result in safer, better outcomes for children. He also said the abuse argument could present a slippery slope, saying any condition a woman has during childbirth, like obesity or Zika virus, could be considered grounds for child abuse if the child is adversely affected after birth.

Lawyers for L.B.’s mother, the defendant, immediately filed a petition for appeal in the state Supreme Court in January.

Amanda Browning, the solicitor for Children and Youth, could not comment on the case at this time.

But in her response to the mother’s lawyers’ petition, she argued that the language of the CPSL as well as the 2006 Child Abuse Prevention and Treatment Act (CAPTA), and the “intent and purpose” of the CPSL demonstrate the legislature meant to qualify prenatal drug abuse as child abuse.

Browning previously said she believes the state laws should be used to their fullest extent to protect vulnerable children. She also said the law specifically addresses cases where mothers abuse drugs during pregnancy and the behavior adversely affects the child.

Some of L.B.’s mother’s lawyers did not return calls for comment, and her attorney, Robert H. Lugg of Lugg & Lugg Law Offices in Lock Haven, declined to comment.

Her lawyers filed a petition to the state Supreme Court which said, in part: “This Court has never addressed the issue of how the Child Protective Services Law applies to pregnant women who use drugs… There are substantial legal and policy concerns raised by this issue that require a thorough analysis from this Court — due process, public health, women’s reproductive rights, statutory interpretation, and more.”

They further argued that the Court needed to determine whether the “recent act or failure to act” that constitutes child abuse in the CPSL includes activity before childbirth, something the Court had never decided before.

Cathleen Palm, founder of the Berks County-based advocacy organization Center for Children’s Justice, said the Supreme Court’s decision will be very significant to the conversation on the effect of maternal drug use on both mother and child.

“From our perspective, just the mere use of drugs during pregnancy… was never about the concept of labeling a woman an abuser,” she said. “It was about… we want women… to have access to healthcare.”

She said neither the federal nor state Legislature has ever declared parental substance abuse to be child abuse — and they had many opportunities to do so. If a parent is abusing substances, the law provides grounds to remove the child from the home for its safety, but not to designate the parent as an abuser, she said.

If the Supreme Court were to designate women who abused drugs during pregnancy as child abusers, Palm said, all those convicted would be put in a registry. She also cautioned that taking a punitive approach to drug addiction would most likely lead to women being afraid to seek out prenatal care that could drastically improve the baby’s quality of life.

“So 20 years from now, that mom, once she’s put on that registry… it is essentially a marker for life,” she said.

Briefs for the case are due to the Supreme Court May 3.