The Pennsylvania Supreme Court ruled on Dec. 28 that women who use illegal drugs during pregnancy are not child abusers, handing a victory to Professor David S. Cohen, who argued the case on Sept. 25, 2018.
Cohen, along with an attorney from the Women’s Law Project, represented a mother who tested positive for suboxone and marijuana when she delivered a baby at Williamsport Hospital in 2017. The Clinton County Children and Youth Services Agency, which had been granted emergency protective custody of the newborn, was rebuffed in its effort to secure a finding of child abuse from the juvenile court. The agency appealed to the Superior Court, which reversed the juvenile court ruling.
Cohen and the Women's Law Project petitioned the state Supreme Court, which agreed to review the matter. In September, Cohen argued that a pregnant woman who uses drugs does not qualify as a perpetrator of abuse under the state’s child abuse statute.
A 5-2 majority of the Supreme Court agreed, finding that the statute’s plain language does not identify a fetus as a child or unborn child. The ruling noted that the General Assembly could have specified that the law applies to a fetus or unborn child, just as it has done in statutes such as the “Crimes Against the Unborn Child Act” and the “Abortion Control Act.”
In its coverage of the ruling, the Associated Press quoted Cohen on question of how states handle illegal drug use by mothers.
"There are many states that have decided by statute to label this type of behavior child abuse, but the majority do not," Cohen said. "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."
In an interview with The Legal Intelligencer, Cohen called the ruling “a great victory.”
“It means that people dealing with addiction and other problems during pregnancy are going to be treated for a medical condition, as opposed to being treated as child abusers and being punished by the state,” he said. “That’s good for everyone.”
Cohen is an expert on gender and constitutional law. He's currently working on a book, "Obstacle Course: The Struggle to Get an Abortion in the United States," which will be published by the University of California Press.