Pennsylvania's Top Court Issues Ruling About Drug Use During Pregnancy

By Keri Blakinger 01/02/19

The mother at the center of the case was using opioid painkillers and cannabis when she became pregnant in 2016.

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A top court judge reading his ruling about drug use during pregnancy

A Pennsylvania court last week ruled that using drugs during pregnancy doesn’t count as child abuse, siding with a mother whose baby was taken by the state in 2017. 

At the heart of the case is the question of whether a fetus counts as a child under Child Protective Services Law – and the state’s Supreme Court answered with a clear no in Friday’s opinion.

“The fact that the actor, at a later date, becomes a person who meets one of the statutorily-defined categories of ‘perpetrator’ does not bring her earlier actions — even if committed within two years of the child’s bodily injury — under the CPSL,” wrote Justice Christine Donohue.

David S. Cohen, the attorney representing the mother in the case, celebrated the decision.

“There are many states that have decided by statute to label this type of behavior child abuse, but the majority do not,” Cohen told The Associated Press. “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 mother at the center of it all, who is identified only by her initials in court filings, was using opioid painkillers and pot when she got pregnant in 2016. She turned to medication-assisted treatments but relapsed just before giving birth in 2017, according to The Philadelphia Inquirer.

When the newborn started showing signs of opioid withdrawal, a local court granted emergency custody to the state. 

Later, the juvenile court decided it wasn’t abuse – but the Superior Court reversed that decision. Two justices there asked the state’s Supreme Court to take a look at the case, worrying about the effects of punishing pregnant women who use medication-assisted treatment.

In last week’s decision overturning the Superior Court ruling, two justices dissented, writing that what should matter is when the injury shows up – not when the behavior causing it occurs.

“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,” wrote Justice Sallie Mundy, “or suffering from a severe diaper rash from failure to routinely change diapers.”

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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.

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