Supreme Court rules mothers’ drug use in pregnancy isn’t child abuse
Pennsylvania’s highest court ruled Friday that mothers who use illegal drugs while pregnant cannot be considered perpetrators of abuse against their newly born children under the state’s child protection law.
The decision is the latest addition to the debate over how to address the prevalence of substance use, and particularly opioid use, during pregnancy. One camp, including some prosecutors and some child protective services, views drug use as irreparable harm to the fetus and seeks to address it punitively. The other camp, including some medical providers and civil liberties advocates, views pregnancy and maternity as an opportunity to treat addiction.
The Supreme Court’s ruling adds to a run of successes for the second camp. The court majority said the law’s definition of a child does not include fetuses or unborn children, and victims of perpetrators must be children under the Child Protective Services Law.
The decision comes on the heels of an August Superior Court ruling that upheld a Butler County judge’s decision that a woman could not be charged with assault against her fetus for overdosing on heroin while pregnant. The 1997 statute that makes it a crime to hurt or kill an unborn child specifically exempts pregnant women, alongside abortion providers and medical personnel, from being charged for hurting their own fetuses.
Butler County Common Pleas Judge William Shaffer called that woman’s alleged act “senseless, selfish and heinous” but said he was constrained by the law. Butler County prosecutors appealed his ruling, but did not appeal the Superior Court ruling.
The rulings set precedents that could be increasingly relevant.
According to a report released this month by the Pennsylvania Health Care Cost Containment Council, opioid use during pregnancy is more than five times more common then it was at the beginning of this century, and now makes up almost half of all maternal substance use. Opioid use was present in almost two percent of Pennsylvania maternal stays from 2016 to 2017.
An even bigger fraction of Southwestern Pennsylvania pregnancies involve opioid use. In Allegheny County, the rate was over 2.5 percent in that period.
In Allegheny County, the non-punitive approach has held sway. County Department of Human Services spokeswoman Elaine Plunkett said that the Supreme Court’s ruling matches existing practices by county Children Youth and Families.
It is also consistent with the approach medical systems are taking.
In 2014, Magee-Women’s Hospital of UPMC introduced concurrent treatment for opioid dependency to prenatal care at its Pregnancy Recovery Center, which it expanded to five outpatient treatment centers in 2017. Last summer, it added a Parent Partnership Unit, which offers extended postnatal stays to new moms whose babies are born in withdrawal from opioids.
Patty Genday, executive director of women’s services at Magee-Womens, told the Post-Gazette at the time that pregnancy and new motherhood is an opportunity to get women with opioid dependency into appropriate care.
“Every woman wants to have a healthy baby,” Ms. Genday said. UPMC did not respond to requests for comment Friday.
Two justices dissented from the Supreme Court child abuse decision. They wrote that the child protection law should apply to injuries to the child that become evident after birth, even when the actions that caused the injuries occurred during the pregnancy.
“The facts in this matter more closely resemble neglect cases where the injury manifests at some point in time after the neglect as in cases of malnourishment from lack of food, or suffering from a severe diaper rash from failure to routinely change diapers,” wrote Justice Sallie Mundy, joined by Justice Debra Todd.
The case involves a newborn girl who spent 19 days last year in Williamsport Hospital, where she was treated for drug dependence that caused severe withdrawal symptoms. Her mother had relapsed into drug use after getting out of jail, and two weeks before the girl was born in January 2017 the mother tested positive for opiates, marijuana and benzodiazepines, Justice Christine Donohue wrote.
That’s not an unusual hospital stay for a child exposed to opioids in the womb. The average newborn with neonatal abstinence syndrome, or NAS, stays in the hospital over 17 days, versus 3.5 for all other newborns, according to the council. NAS babies are more likely to be born premature, at low weights, and to have difficulty feeding and breathing.
While the baby in the Supreme Court case was hospitalized, Justice Donohue wrote in the majority’s decision, the mother did not check in on her or stay with her. Clinton County Children and Youth Services was granted protective custody. In May 2017, the county judge determined the law did not provide for a finding of abuse for what occurred before the girl was born.
The Clinton County child welfare agency argued that a finding of child abuse would help protect other children if the mother were to become pregnant again.
The mother’s lawyer, David S. Cohen, called the Supreme Court’s decision a victory for public health and the rights of women and children.
“There are many states that have decided by statute to label this type of behavior child abuse, but the majority do not,” Mr. Cohen said Friday. “We think that’s the right way to approach this, because this is a health issue and the worst thing you can do with a health issue is punish people. It drives people from treatment and it results in worse outcomes for everyone.”
The decision overturns a Superior Court ruling that a Clinton County judge erred in deciding the mother’s drug use did not qualify as child abuse.
Superior Court Judge Geoffrey Moulton wrote a year ago that a mother’s substance abuse while pregnant “may constitute child abuse” if authorities can prove she “intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of, bodily injury to a child after birth.” Judge Moulton wrote the word “after” in boldface.
While the case was in family court and not criminal court, if the woman had been deemed a perpetrator, that would have put her on a lifetime registry and would have affected her employment and ability to volunteer around children, Mr. Cohen said.
Mr. Cohen said his client does not have custody of her daughter.
Sara Rose, staff attorney for the American Civil Liberties Union of Pennsylvania, told the Post-Gazette in July that women should not face criminal charges for using drugs while pregnant.
“It deters women from seeking prenatal care,” Ms. Rose said.
The ACLU of PA did not respond to a request for comment from the Post-Gazette regarding the latest Supreme Court Decision.
Christopher Huffaker: 412-263-1724, [email protected], or on Twitter @huffakingit. The Associated Press contributed.