Pennsylvania Supreme Court To Decide If Prenatal Drug Use Is Child Abuse

By Keri Blakinger 09/28/18

A lengthy legal battle has been waged by the state against a mother whose newborn was hospitalized for 19 days to treat drug withdrawal.

Pennsylvania State Capitol building

The highest court in the Keystone State this week heard arguments on the divisive matter of whether prenatal drug use counts as child abuse. 

Attorneys for child protective services framed it as a matter of “human rights,” while defense lawyers for an unnamed mother warned that criminalizing such behavior could be a “slippery slope,” according to the Philadelphia Inquirer

The Pennsylvania Supreme Court case revolves around a woman who tested positive for a medley of drugs—including pot, opioids, and benzodiazepines—just after giving birth in a central Pennsylvania hospital. Afterward, her newborn was hospitalized for 19 days to treat drug withdrawal.

Children and Youth Services took custody of the baby and accused the mother of abuse, setting off a lengthy legal battle still winding through state courts. 

Early on, a Clinton County court decided that the mother’s drug use didn’t constitute child abuse as a fetus is not a child. But during the appeals process, a Superior Court bounced the case back to the lower court, though two judges raised concerns about the implications of labeling drug use during pregnancy as a form of abuse.

"Should she travel to countries where the Zika virus is present? Should she obtain cancer treatment even though it could put her child at risk?" wrote Judge Eugene Strassburger, according to the Philadelphia newspaper. 

Earlier this year, attorneys for the mother—who is identified in court filings only by her initials—asked the state’s high court to take up the case, and this week the justices heard oral arguments from both sides. 

"Failing to heed a doctor's advice to take folic acid, if the child is born with a neural tube defect, then the mother could be a child abuser under the county's reading of the statute," said attorney David Cohen, arguing that labeling prenatal drug use as child abuse could open the door to a variety of similar arguments against unhealthy behavior. 

But Justice Christine Donohue called that “slippery slope” argument “too much,” and said she wasn’t sure that she’d “buy” it. Meanwhile, county CYS attorney Amanda Browning told the court that the case was about “human rights, equal protection and child welfare,” pointing to the painful withdrawal process after birth.

It’s not clear when the high court will issue its decision.

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Keri Blakinger is a former drug user and current reporter living in Texas. She covers breaking news for the Houston Chronicle and previously worked for the New York Daily News and the Ithaca Times. She has written about drugs and criminal justice for the Washington Post, Salon, Quartz and more. She loves dogs and is not impressed by rodeo food. Find Keri on LinkedIn and Twitter.