Pennsylvania Supreme Court grapples with whether drug abuse during pregnancy is child abuse

The Supreme Court of Pennsylvania on Tuesday began weighing an issue that has roiled America since the crack epidemic of the 1980s: whether women who abuse drugs during their pregnancies can be punished under state law as child abusers.

The state's high court has never addressed the matter, which is again igniting debate as the opioid crisis spawns a new generation of babies born dependent on their mothers' drugs.

The seven justices heard oral arguments in Philadelphia in a case titled In the Interest of L.J.B. It involves a woman, identified by the initials A.A.R., who gave birth in January 2017 in Williamsport Hospital, about 175 miles northwest of Philadelphia. The mother tested positive for marijuana, opioids, and antianxiety drugs that can heighten the effects of opioids, and her infant spent 19 days at the hospital being treated for drug-withdrawal symptoms.

Clinton County Children and Youth Services took the baby into custody, accusing the mother of child abuse under Pennsylvania's Child Protective Services Law.

That law defines child abuse as any action or failure to act that "intentionally, knowingly, or recklessly" injures a child, or makes injury likely. The law also requires that hospitals notify the county child protection agency of drug-exposed newborns so caseworkers can assess the family's need for services or even foster care.

>> READ MORE: In the opioid epidemic, breastfeeding emerges as a possible crime

The mother's lead attorney, Drexel University law professor David Cohen, argued that the mother's drug use occurred during pregnancy, so her actions affected her fetus, and the law does not consider a fetus to be a child.

He also pointed out that the legislature has repeatedly considered revisions of the law that would have explicitly included prenatal drug abuse within the definition of child abuse. "The legislature has decided not to do this, time and time again," he said.

But his most detailed argument — one that was met with skepticism from several justices — was that equating prenatal drug abuse with child abuse could lead to policing pregnant women for all sorts of actions during pregnancy. Drinking alcohol, smoking, or even changing kitty litter, which is linked with a prenatal infection, could be deemed abusive. And since the law defines recent to include actions within the last two years, preconception behavior could fall under the umbrella of child abuse.

"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," Cohen said.

In response, Justice Christine Donohue said: "It seems to me the slippery-slope argument is presuming too much. I'm just not sure from your argument that I buy" it.

Amanda Browning, the attorney for Clinton County CYS, was sharply interrupted by Justice Max Baer when she began her presentation by declaring the case was about "human rights, equal protection, and child welfare."

Baer noted that CYS had not raised any such constitutional arguments in its legal brief. "Argue the statute," he directed.

Browning contended that because the mother knew her baby would suffer painful withdrawal symptoms at birth, her drug use fit the definition of child abuse: "You're going to have a child who suffers the harm of the drugs you're ingesting" while pregnant.

Baer challenged her to address the fact that a fetus is not a child under the law.

"We're only arguing you can make a finding of child abuse once the child is born," Browning said.

The Supreme Court's review — requested by the mother's attorneys, including Carol Tracy of the Women's Law Project in Philadelphia — was preceded by a series of lower-court actions.

The Juvenile Court of Clinton County ruled there was no child abuse because the mother's actions affected the fetus. On appeal, the state Superior Court concluded that more lower-court proceedings were needed to determine whether the mother's actions fit the definition of child abuse. But two Superior Court judges also sounded alarms about the implications of such a ruling.

Punishing mothers struggling with addiction, the judges warned, could deter women from getting prenatal care and drug rehabilitation, break up families, and open the door to criminalizing risky choices. "I question whether treating as child abusers women who are addicted to drugs results in safer outcomes for children," wrote Superior Court Judge Eugene B. Strassburger.

The severity of newborn drug withdrawal varies. The symptoms – including inconsolable crying, tremors, muscle rigidity, and diarrhea – are usually treated with decreasing doses of oral morphine or methadone, both opioid medicines. Although some studies have linked withdrawal to later developmental problems, most research is inconclusive, and the effects of poverty — itself a risk factor for health problems — often make findings hard to interpret.

The problem of opioid use in pregnancy is complicated by addiction treatment considerations. Many women are prescribed opioids — methadone or buprenorphine — to manage their cravings, prevent withdrawal, and avoid the miscarriage risk of quitting opioids cold turkey. A.A.R., the mother in this case, was prescribed buprenorphine beginning in December 2016, according to her legal brief.

The problem is growing explosively in Pennsylvania, where nearly 3,300 drug-exposed newborns were delivered last year, up from 788 in 2000, according to a Pennsylvania Health Care Cost Containment Council analysis.

These infants are at greater risk of abuse and neglect if the mother's drug abuse continues. But the federal child abuse law, and most state child abuse laws, are designed to help – not punish – women in addiction by identifying them when they give birth and connecting them to social services. Medical experts, including the National Perinatal Association and the American College of Obstetricians and Gynecologists, oppose punitive approaches.

In the case of baby L.J.B. a long list of agencies and experts — including the Philadelphia Department of Human Services and the Drug Policy Alliance – submitted advisory briefs to the Supreme Court to stress that a finding of child abuse is not needed to protect children.

The Supreme Court has no timetable for issuing a ruling.