The New Jersey Supreme Court is considering a case that extends the state’s civil child abuse statutes to include women who receive medically prescribed methadone treatment while pregnant. The case is the latest in a nationwide string of cases seeking
to hold pregnant people civilly and sometimes criminally accountable to their states for the outcome of their pregnancies.
At the center of the New Jersey case is a woman, identified by the court as Y.N., who struggled with a dependency on opioid painkillers. Once Y.N. found out she was pregnant she took steps to treat her opioid dependency, including following her doctor’s advice to begin methadone treatment immediately. Y.N. continued with her methadone treatment throughout her pregnancy and eventually gave birth to a healthy baby who, shortly after birth, was successfully treated for neonatal abstinence syndrome (NAS). NAS is a side effect of methadone treatment and other medications, such as those commonly prescribed to treat depression, and is considered by medical experts to be a temporary, treatable condition. But based on the baby’s NAS, Y.N. was reported to the Division of Child Protection and Permanency (DCPP), the agency charged with enforcing child abuse and neglect laws, which
determined that Y.N’s use of methadone while pregnant violated the state’s civil child abuse and neglect statutes.
A trial court upheld DCPP’s abuse and neglect finding in a decision that has drawn the attention of a number of medical groups, which filed a friend of the court brief urging the state supreme court to overturn the decision. According to the groups, extending the state’s child abuse statutes to include cases like Y.N.’s is not just contrary to the scientific recommendations of medical professionals, it is devastating public health policy.
Those experts—including the American College of Obstetricians and Gynecologists, the American Psychiatric Association, the American Public Health Association, the American Society of Addiction Medicine, the Medical Society of New Jersey, the New Jersey Psychiatric Association, the New Jersey Obstetrical and Gynecological Society, the National Council on Alcoholism and Drug Dependence, and the National Council on Alcoholism and Drug Dependence-New Jersey—detail just how wrong DCPP and the New Jersey court got it in their brief. To begin with, the experts argue, the court was wrong to support the agency’s finding of abuse and neglect because it did so without examining a host of medical evidence related to the value and effect of methadone and similar treatment for pregnant women and their future children. Dr. Robert Newman, one of the experts represented in the brief and an internationally recognized authority on methadone treatment, explained this point further in a statement: “As a matter of medicine and health care, it is simply nonsensical to regard methadone treatment as a form of child abuse.”
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“Decades of research unequivocally demonstrate the benefits of treating a pregnant woman’s addiction to opioids with methadone, an extraordinarily well-studied medication whose benefits to the mother as well as the baby unquestionably outweigh the treatable and transitory side effects that are sometimes seen in the newborns,” he said.
Among the factors the lower court failed to consider are the health measures that can be taken after birth to reduce symptoms of NAS, including keeping the new mother and baby together and encouraging breastfeeding, and the fact that methadone and similar treatments are widely acknowledged to improve fetal outcome. “Methadone and other related treatments are acknowledged by national and international governmental, academic and clinic authorities to be the best choice for maternal, fetal, and child health, reducing risks of miscarriage, stillbirth, and premature birth,” said Newman.
But it’s not just a lack of evidence that calls the lower court’s ruling into doubt, the experts argue. New Jersey’s civil child abuse and neglect statute makes no mention of pregnant women nor a developing fetus, but instead refers
only to a “parent or guardian.” Nor does the statute define harm in any way that includes the health condition of the child at birth. These omissions indicate that the State of New Jersey did not want pregnant people subject to abuse and neglect findings based on the outcomes of their pregnancies, a point explained in a statement by Lynn Paltrow, executive director of the National Advocates for Pregnant Women and co-counsel representing the experts: “Unless the lower court decision is reversed, New Jersey would become the only state in the U.S. to effectively ban pregnant women from receiving methadone treatment.”
As Paltrow notes, the New Jersey court’s finding of abuse and neglect here is not just a misapplication of the law, it directly conflicts with New Jersey’s own health and welfare policies that not only encourage methadone treatment for pregnant people but specifically make it available through coordinated social welfare programs. “DCPP’s position and the lower court’s decision is inexplicable and irrational,” said Paltrow. “They not only fly in the face of the recommendations of the World Health Organization and the U.S. government, but New Jersey itself, which, through collaborations between the New Jersey Department of Mental Health and Addiction Services and DCPP, provides methadone treatment to pregnant women and families in the child welfare system.”
Other cases in New Jersey that have looked at similar issues have refused to expand the civil child abuse statute in such a way, a fact that should help advocates’ cause here. A 2013 case refused to allow the state child protection agency to expand the scope of its jurisdiction to include women who have used a controlled substance during pregnancy, while an earlier 2005 decision refused to allow the agency to expand the scope of its jurisdiction to pregnant women who make informed refusals of medication intended to prevent maternal-child HIV transmissions.
But the result of the lower court’s decision here is a radical expansion of the child abuse statute. According to the lower court, harm now encompasses the health conditions of a newborn, including the side effects of medications legally prescribed to women during their pregnancy. That means that women are held responsible to the state for the outcomes of their pregnancies, even though those outcomes are almost always out of their control. Lawrence S. Lustberg
, co-counsel for the amici, is hopeful a review of the decision will rectify that error. “The New Jersey Supreme Court has been a national leader in recognizing that when cases raise scientific, medical, or other technical issues, the evaluation of these issues must be informed by existing scientific knowledge, including expert testimony,” Lustberg said in a statement. “This case should not be an exception, yet, the decision in the lower court was reached without the input of a single medical expert and without considering the established science addressing the value of methadone treatment to maternal, fetal, and child health, and other key health and social welfare issues in the case.”
Should the New Jersey Supreme Court uphold the lower court ruling and green-light DCPP to begin policing pregnancy outcomes like Y.N.’s, the effect will undoubtedly be to further reinforce racial and class disparities in terms of which populations DCPP targets for abuse and neglect findings. That is a fact playing out in jurisdictions across the country as more anti-choice lawmakers and prosecutors look for ways to use criminal and civil statutes to advance the cause of fetal rights over women’s rights, with those prosecutions disproportionately
affecting women of color. Furthermore, there is nothing in the lower court’s decision that limits its ruling to pregnant women who receive methadone treatment. That means if the decision is upheld, it could be applied to any pregnant woman, including those who experience health conditions such as epilepsy, depression, and blood clots that require medication that have potential adverse effects in a newborn, let alone women like Y.N. who followed their doctors orders to both treat a chemical dependency and try for the best possible outcome for their pregnancies.
But maybe most troubling in this case is the role of the state and its apparent willingness to play both sides of the issue at the expense of vulnerable women. The State of New Jersey touts its maternal chemical dependency programs, including methadone treatment programs, as ways to support children and families, rather than stigmatize them by using participation in the program as a possible threat of future agency intervention. And these are not just bragging rights either. New Jersey, like other states, looks for help from the federal government in paying for these kinds of programs. That means the state is applying for block grant funding for drug dependency programs that include methadone treatment and, at the same time, is arguing in court that the use of methadone with the advice, prescription, and supervision of a physician is a form of child abuse. And that fact leads to only two possible conclusions: Either state officials don’t know what
the state’s family welfare agency is doing and are therefore negligent in their supervision of that agency, or they don’t care.
Given the Christie administration’s abysmal track record on reproductive justice issues, this latest incident comes as no surprise.
And it’s a situation not confined to New Jersey ; as we’ve seen recently in the Bode Miller “absconding with a fetus” case, courts will readily look to the decision from one jurisdiction to justify a controversial decision of its own. That means a decision from the New Jersey Supreme Court will, inevitably, have some degree of national reach. Let’s hope it’s the right reach for the right reason.