By Jonathan Stempel
(Reuters) – A divided Pennsylvania Supreme Court ruled on Friday that mothers who use illegal drugs during their pregnancies are not committing child abuse against their newly-born children.
Reversing a lower court ruling, the 5-2 decision came amid a nationwide opioid crisis, including abuse by pregnant women that can result in preterm labor, stillbirth and withdrawal symptoms for new babies.
The case involved a girl, known as L.J.B., who suffered withdrawal symptoms and was hospitalized for 19 days following her January 2017 birth after her mother, known as A.A.R., used opioids and marijuana during the pregnancy.
In the main opinion, Justice Christine Donohue, joined by two of her colleagues, said Pennsylvania’s Child Protection Services Law defined a child as someone under 18 years old, and the law’s “plain language” excluded a fetus and unborn child from that definition.
“Had the General Assembly intended to include a fetus or unborn child under the protections of the CPSL, it would have done so,” Donohue wrote.
David Cohen, a law professor at Drexel University in Philadelphia representing the mother, in an interview said the decision meant the mother would not be listed on a state child abuse registry for life, hurting her ability to obtain employment or do volunteer work.
“It’s a great victory for public health and women’s and children’s rights,” Cohen said. “It means people dealing with addiction and other problems during pregnancy will be able to get medical treatment without fear of being punished by the state. When you punish moms, ultimately you harm children.”
The Clinton County Children and Youth Social Services agency in Loch Haven, Pennsylvania, about 175 miles (282 km) northwest of Philadelphia, had taken L.J.B. into emergency protective custody after her birth, and accused the mother of child abuse.
The agency’s lawyer, Amanda Browning, did not immediately respond to a request for comment.
Justice Sallie Updyke Mundy dissented, saying the case resembled neglect cases, such as malnourishment, where injuries manifested themselves at some point after the abuse began.
“The bodily injury L.J.B. suffered was a direct result of a recent act of Mother, the use of illegal narcotics,” she wrote.
Opioid abuse among pregnant women affected 6.5 out of 1,000 delivery hospitalizations in 2014, up from 1.5 per 1,000 in 1999, the U.S. Centers for Disease Control and Prevention said in August.
L.J.B. is living with foster parents, Cohen said.
The case is In the Interest of L.J.B. a minor, Pennsylvania Supreme Court, No. J-57-2018.
(Reporting by Jonathan Stempel in New York; Editing by Leslie Adler)
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