UPDATE, January 2, 2:02 p.m.: Pennsylvania’s Supreme Court on December 28 ruled that pregnant people who use narcotics should not face criminal charges, NBC News reports. Two justices dissented in the case.
The Pennsylvania Supreme Court is poised to decide whether the state’s child abuse law can be used to penalize pregnant people who have narcotics in their system.
If the court takes the case and permits a finding of child abuse based on actions the mother took before the child was born, it will be yet another barrier to care that pregnant people with substance abuse problems may face.
The case in question, In the Interest of: L.J.B., involves a woman whose child was born allegedly suffering from withdrawal symptoms as a result of the mother’s drug use while pregnant. She tested positive for marijuana and opiates and the Clinton County Children and Youth Services (CYS) ultimately took legal and physical custody of the child, and will continue to do so until a determination is made as to whether the woman committed child abuse.
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The state’s Child Protective Services Law was enacted as a civil statute to prevent child abuse and protect children from further abuse. The law defines child abuse as “intentionally, knowingly, or recklessly … causing bodily injury to a child through any recent act or failure to act.” It primarily concerns requirements when it comes to reporting child abuse. The trial court ruled that the Pennsylvania law “does not provide for finding of abuse due to actions taken by an individual upon a fetus.”
But the appeals court disagreed, despite the fact that the child abuse statute was not intended to ensnare pregnant people. It reversed the trial court’s ruling and sided with CYS.
“Under the plain language of the statute, mother’s illegal drug use while pregnant may constitute child abuse if the drug use caused bodily injury to the child,” Superior Court Judge H. Geoffrey Moulton Jr. wrote for the majority.
“If Children and Youth Services establishes that through mother’s prenatal illegal drug use she ‘intentionally, knowingly or recklessly’ caused, or created a reasonable likelihood of, bodily injury to child after birth, a finding of ‘child abuse’ would be proper,” he added.
The Women’s Law Project, which is co-counsel on the case, filed a petition with the Pennsylvania Supreme Court asking it to take up the case. The petition noted that “the legislature has in the past considered an expansion to this law to explicitly include drug use by pregnant women as child abuse but never adopted that change.”
The petition is referring to an incident in 2011, when a group of senators introduced a bill, SB 753, which would have amended the definition of child abuse to include a child testing positive at birth for controlled substances. The law contained an exception for positive tests that result from the mother taking prescribed medication.
That bill failed to make it out of committee.
In ignoring that legislative history, the appeals court perverted the existing statute to, essentially, enshrine a law that the legislature declined to enact.
The National Advocates for Pregnant Women have been documenting the increase in criminalization of pregnancy for years. And while this case involves a civil penalty, and not a criminal one, the principles of penalizing pregnant people differently from non-pregnant people are the same.
Civil penalties for the Pennsylvania law, as we are seeing in the current case, may mean loss of custody. Moreover, Pennsylvania maintains a central registry of child abuse reports. And as the Pennsylvania Supreme Court noted in G.V. v. Department of Public Welfare, identifying mothers as child abusers can “profoundly impact that person’s reputation.” So while the law doesn’t provide for criminal punishment, the law nevertheless punishes pregnant people. It also discourages pregnant people from seeking both substance abuse treatment and prenatal care.
These laws also perversely may lead to more abortions. The threat of criminal or civil penalties discourages pregnant people with drug problems from carrying pregnancies to term, thus resulting in pregnant people who might otherwise choose to maintain their pregnancies choosing to get abortions in order to avoid prosecution and potential imprisonment. (In one case, State v. Greywind, that’s exactly what happened—a woman facing prosecution for taking drugs and allegedly harming her fetus aborted the pregnancy, was released from jail, and avoided prosecution.)
David Cohen, professor of law at Drexel University and an attorney who is working on the case with the Women’s Law Project, said, in an interview with Rewire, that this is a real danger. “That’s one of the huge issues in any of these cases involving punishing people for being pregnant,” Cohen said.
“The incentive is to have an abortion if you are addicted to drugs or engaged in any kind of behavior that might have this risk of injury; you could rationally determine that your best choice is to have an abortion when that’s not what you want,” Cohen continued.
And besides, where does it end? If pregnant people can be penalized for activity that harms a fetus in utero, then what kinds of activities would they be barred from? No sushi? No flying? What if a pregnant woman is prescribed bed rest and has to go to work in order to feed the kids she already has? Are we going to civilly or criminally punish that woman for engaging in any activity whatsoever that might injure her fetus?
What if she does so before she even knows she’s pregnant? Before she even intends to get pregnant? If the Pennsylvania Supreme Court permits the Superior Court’s interpretation to stand, a pregnant person could be penalized for something she did up two years prior, according to the law’s definition of “recent act.”
David Cohen says that this time frame makes it even more dangerous.
“For instance, if a pregnant woman decides to stick with a man who’s abusing her, then she could be considered a child abuser for staying with a man who is abusing her, or moving to an neighborhood that has bad water or living in conditions of poverty,” he said.
“It seems like the potential here is just endless not to criminalize but to civilly punish women for actions taken while pregnant or before pregnant,” he continued.
Proponents of the law would argue that such suggestions are hyperbolic, but the law allows for precisely these scenarios.
No state legislature has passed a law making it a crime for a pregnant person to continue her pregnancy to term in spite of drug or alcohol use, so post hoc penalization seems unfair. Drug and alcohol addiction are medical concerns that require compassion and care, not incarceration or forcing parents to give up custody of their children to the state.
In L.J.B.’s case, it is still unclear whether or not the woman’s conduct will be considered child abuse. The appellate court ruled that it could be, and if the state supreme court agrees, questions about whether she intentionally, knowingly, or recklessly caused injury to her child remain to be decided by the trial court.
Whatever the outcome of her case, though, it is alarming that when it comes to pregnant people, courts around the country have been willing to bend legal rules and common sense in order to imprison or otherwise penalize pregnant people. Purvi Patel, Bei Bei Shuai, and Amanda Kimbrough come to mind. And far too often, those penalized are low-income people and people of color. (I wrote about this phenomenon when Tennessee became the first state to pass a law criminalizing pregnancy in 2014. That law has since expired and is no longer in effect.)
“When it comes to situations like this, people who have more contact with the government are at greater risk. That tends to be people who live in poverty because they have more contact with the government through social service agencies,” Cohen said.
“It puts a certain class of women at greater risk than others, and we know who those women are going to be. They’re going to be poor women, women of color, and they’re going to be the ones who are punished.”