HARRISBURG — The Pennsylvania Supreme Court is considering whether a woman’s drug use while pregnant can be considered child abuse of the baby she was carrying.

The case, appealed to the state's top court after a Superior Court ruled that it can be considered abuse, is being closely watched for its implications on how county agencies deal with the surge in drug use by expectant mothers during the opioid epidemic.

There are other potential implications as well, including whether county agencies are going to have the power to penalize women for actions they take during pregnancy that could harm their babies.

“No one thinks it’s a good idea to use illegal drugs while pregnant,” said David Cohen, an attorney for the Women’s Law Project, which is representing the mom in the case. She’s identified in court documents only by her initials, AAR.

The concern is that by creating penalties, the system would deter women from accessing pre-natal care or seeking treatment for addiction, he said.

Court records indicate the child in this case spent 19 days in the hospital being treated for drug dependence and exhibited severe withdrawal symptoms.

The case originated in Clinton County where children and youth officials sought to have the mom declared a perpetrator of child abuse.

Last May, a county judge refused, but on appeal, the state Superior Court in December sided with the county agency.

In their decision, the Superior Court judges found that drug use while pregnant may be enough to name a woman a perpetrator of child abuse if caseworkers demonstrate that the drug use resulted in harm suffered by the child after birth.

“We emphasize, however, that prenatal conduct supports such a finding only when the actor 'intentionally, knowingly, or recklessly' caused, or created a reasonable likelihood of, bodily injury to a child after birth,” Superior Court Judge Geoffrey Moulton wrote.

Even in that decision, the appeals court judge noted that harm to the fetus wouldn’t qualify as child abuse under Pennsylvania law.

The state Supreme Court announced in April that it would examine the questions raised in the case. The county and any organization that agrees with their position are due to file arguments supporting their position by the end of this month, according to court documents.

Brian Bornman, executive director of the Pennsylvania Children and Youth Administrators, said his group’s board has not yet decided whether to weigh in on the case.

But, Children and Youth officials are certainly following the case, he said.

“It raises a lot of interesting legal questions,” Bornman said.

Last week, a variety of child welfare advocacy groups, along with the American Civil Liberties Union, filed briefs opposing the idea that drug use while pregnant should qualify a woman as a perpetrator of child abuse.

One of their key objections is that there’s no reason to believe that creating the potential that women will be labeled abusers if they are caught using drugs while pregnant will actually help the moms or their children.

Existing law allows caseworkers to have the child taken from the mom without adding the abuse label, said Sara Rose, an attorney with the ACLU.

Naming the mom a perpetrator of child abuse mainly means that she will not be able to pass background checks to get a job working with or volunteering around children, Rose said.

If the Superior Court’s interpretation stands, it would create a situation where county caseworkers would potentially have wide leeway to label people abusers based on activities that are known to harm babies, including smoking and alcohol use, Cohen said.

The ACLU argued in its filing, among other things, that the vagueness would effectively lead to “arbitrary enforcement” because of the number of potential things the caseworkers could point to as being harmful to children if they are exposed to them before birth, Rose said.

The implications of the case have caught the attention of advocates around the state, including Cathleen Palm, founder of the Center for Children’s Justice, based in Bernville.

Palm said that it’s understandable that some people might view the opportunity to label a drug-using mom an abuser as a means of providing a deterrent to harmful behavior.

But that perspective fails to appreciate that the state isn’t doing enough to help pregnant woman deal with their substance abuse disorder if they have it.

“You don’t improve the outcomes for the mom or the baby by just putting a label on the mom that has a lifetime of consequences,” she said.

John Finnerty is the statehouse reporter for CNHI, the parent company of The Daily Item. Email comments to jfinnerty@cnhi.com. Follow Finnerty on Twitter @cnhipa.

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