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In re LJB

February 22, 2019

By Professor David S. Cohen

On January 26, 2017, a woman in Clinton County, Pennsylvania gave birth to a baby girl. At first, the newborn was completely healthy, but after the second day, the doctors at the hospital noticed symptoms of neonatal abstinence syndrome – tremors, loose stools, increased muscle tone, and excessive suck as the result of opioid withdrawal. This condition, caused by her mother’s use of drugs while pregnant, caused the baby to be held in the hospital for nineteen days. After that, she was released with no further medical problems.

While pregnant, the mom had sought treatment for her addiction. She saw a doctor multiple times who prescribed her medicine to treat her addiction. However, like many people suffering from opioid addiction, the mom relapsed and was not able to refrain from using opiates. As a result, on the day of her daughter’s birth, she tested positive for marijuana, oxycodone, and benzodiazepines.

Given other things going on in the mom’s life, the county youth services agency filed a dependency petition to place the newborn in foster care while the mom got her life in order. (This was not appealed.) Along with that petition, the county also claimed that the newborn was the victim of child abuse based solely on the mom using drugs while she was pregnant. Nothing about the mom’s behavior after her child was born was part of the child abuse allegation.

The lawyer for the mom objected to the child abuse allegation, claiming that the state law governing civil child abuse—the Child Protective Services Law (CPSL)—did not apply to actions taken before the child was born. The lower court agreed, but the Superior Court reversed, ruling that the law applies to actions taken before birth that have an effect on the child once born.

At this point, I, along with lawyers from the Women’s Law Project (where I was spending time working while on sabbatical), got involved in the case as co-counsel for the mom. We asked the Pennsylvania Supreme Court to review the case because we were concerned that if a woman could be found to be a child abuser for actions taken during pregnancy that had an effect on her child, almost any pregnant woman could be swept into the child abuse system. After all, it’s not only illegal drug use during pregnancy that can have an effect on a child. Other things such as how much coffee a woman drinks, whether she smokes or consumes alcohol, if she eats sushi, whether she travels on a plane late in her pregnancy, what medicines she takes, her diet, how much she exercises, whether she makes all of her prenatal care appointments, etc. can also have an effect on her child. Taking a step back even further, if a non-pregnant woman fails to take folic acid supplements, that increases the chance that a child from a subsequent pregnancy might have neural tube defects.

Given the voluminous advice given women before and during pregnancy about how to act or not act in order to have a healthy child, the situations are almost endless in which a woman’s actions or non-actions during pregnancy might possibly cause harm to her child once born. If those actions can be labeled child abuse, the state would be given the ability to police pregnancy in a way that would harm women and children alike. Women with the label “child abuser” would be restricted from employment and volunteer opportunities for the rest of their lives. Women would also be more likely to avoid prenatal care or drug treatment for fear of being reported, which would harm themselves and their families.

For these reasons, when the Supreme Court agreed to take the case, many different groups filed amicus briefs on behalf of the mother. Perhaps most important, several of Pennsylvania’s leading child advocacy groups filed an amicus brief, arguing to the Supreme Court that punishing pregnant women like this would harm children in drastic ways. All of the groups filing briefs agreed that the best response to the problem of drug use during pregnancy is better drug treatment and more accessible prenatal care. In other words, this is a public health problem, not a state punishment problem.

On December 28, the Pennsylvania Supreme Court agreed. In a 5-2 decision, the Court held that the CPSL did not apply to actions taken by the pregnant woman before birth. The decision relied on technical statutory grounds, not the broad policy concerns discussed here. The Court said that the CPSL requires that there be a perpetrator of the child abuse, and that the statutory definition of “perpetrator” did not include a pregnant woman because no child had yet been born.

Although the Court’s clear decision did not address the parade of horribles that the various briefs put before the Court, we have already seen the decision reach one of the slippery slope concerns. On January 2, the Common Pleas Court (Case No. 19-0052) relied on this case to rule that a woman was not a child abuser. In that case, a pregnant woman developed serious eclampsia at the end of her pregnancy, had seizures, and ultimately went into a coma. Her daughter was delivered by cesarean section and was hospitalized for a week due to respiratory distress. After the mom came out of the coma ten days later, the county filed a petition against her claiming she was a child abuser, based solely on their claim that the mom did not get sufficient prenatal care during her pregnancy. Based on the Supreme Court case, the Common Pleas court ruled that the mom could not be a child abuser for conduct during her pregnancy.

This case is part of a long history of cases that have tried to police women’s behavior during pregnancy. Women have been charged with all sorts of crimes, including manslaughter, for their actions during pregnancy when every medical expert agrees that the best course of action is to get pregnant women better and more accessible medical care. Punishment serves no real purpose other than to harm women, children, and families while also sending the message that a woman’s life and health is less valued than that of her fetus. There is no doubt that, in today’s political climate, attacks like these are going to become more and more common. Thankfully, the Pennsylvania Supreme Court put a stop to one version of this problem.

About the Author

David S. Cohen is a Professor of Law at Drexel University Thomas R. Kline School of Law. His research focuses on the intersection of constitutional law and gender, emphasizing how the law impacts abortion provision. He is currently working on a new book about the impact of anti-abortion restrictions on abortion providers' practice of medicine.