Professor David S. Cohen will appear before the Pennsylvania Supreme Court on Sept. 25 to argue a case involving a mother accused of child abuse after testing positive for illicit drugs when giving birth to her baby.

Cohen, along with an attorney from the Women’s Law Project, is representing the mother, who tested positive for suboxone and marijuana when she delivered a baby at Williamsport Hospital in 2017.

A Clinton County judge, citing the state’s Child Protective Services law, ruled that abuse had not occurred, even though the newborn required treatment for drug dependence. The matter was appealed to the Superior Court, which disagreed.

The state’s highest court agreed to decide if a pregnant woman’s use of illegal drugs amounts to child abuse, after Cohen filed a petition seeking its review.

In filings with the court, Cohen and Women’s Law Project Executive Director Carol Tracy note that that language in the state’s child abuse statute defines a parent’s “recent act[s] or failure to act” as occurring within two years of abuse reported to a county agency. Without a ruling by the Supreme Court to the contrary, they argue, child welfare officials could define a mother’s actions years prior to delivering a child as abuse. 

Cohen and Tracy also note that while delivery of a drug dependent newborn triggers a mandatory review as to the need for child protective services, it does not require a finding of abuse.

The county’s position, Cohen and Tracy also argue, contradicts the view adopted by medical and public health professionals that taking a punitive approach toward pregnant mothers who use illegal drugs is counterproductive to public and private health.