A state lawmaker wants the Legislature to make drug use while pregnant child abuse after the state Supreme Court announced that existing law doesn’t allow county authorities to use drug use alone as the cause of an abuse determination.

The Pennsylvania Supreme Court ruled on Dec. 28 that mothers who use illegal drugs while pregnant cannot be charged with abuse of their newly born children under the state’s child protection law.

Sen. Donald White, R-Indiana County, called the court’s decision “truly disturbing. He said intends to get legislation correcting it passed in the new legislative session.

The court’s ruling essentially found that Pennsylvania’s Child Protective Services Law does not recognize fetuses as children. Pennsylvania is one of 27 states that doesn't consider drug use while pregnant child abuse, according to an analysis by the Guttmacher Institute, a think tank that studies reproductive health issues. Among nearby states, only Ohio treats drug use while pregnant as abuse, according to the group.

In the case at the heart of the December Supreme Court ruling, an unnamed Clinton County mother reportedly used opioid pain medication and marijuana during her pregnancy.

When the baby was born in January, 2017, the mom had marijuana and prescription medicine for treating opioid addiction in her system, according to a summary included in the Supreme Court’s decision. The baby ended up being in the hospital for 19 days, being treated for drug withdrawal.

In the decision, Justice Christine Donohue noted that under Pennsylvania’s child abuse law, “not every person who harms or injures a child is a perpetrator of ‘child abuse.’”

She added that the law specifically defines a child as an “individual under the age of 18.”

Her opinion concluded that under existing law, an unborn child doesn’t meet that definition and if the General Assembly had intended for unborn children to be included they would have passed legislation doing so.

“My bill will close the loophole in the law that was stressed by the Supreme Court,” White said in announcing his planned legislation. “A mother’s responsibility begins before her child is born and that should not be erased by a perceived ambiguity in the law.”

White has not formally introduced the legislation, but he’s indicated he intends to focus on illegal drug use. Critics of his plan suggested his proposal could open a Pandora’s box.

The legislation “would set a dangerous precedent wherein nearly any behavior while pregnant, from eating blue cheese to undergoing chemotherapy, could be considered child abuse,” said David Cohen, the attorney who argued the case before the Supreme Court on behalf of the mom.

Another concern is whether the legislation would include conduct by the mom before she realized she was pregnant, said Deb Beck, president of the Drug and Alcohol Service Provider Organizations of Pennsylvania. It would also be difficult to argue the state should make illegal drug use abuse without also considering the same approach for alcohol use while pregnant, she said.

Beck said she would rather see the state focus on efforts to get pregnant moms into treatment to overcome their addiction.

A number of advocacy groups have opposed the idea of considering drug use while pregnant a form of abuse. That opposition has largely out of concern that it would deter moms from seeking help if they fear repercussions from disclosing drug use.

Cohen said he doesn’t think the General Assembly should pass White’s proposed legislation. He noted lawmakers have had the opportunity to pass similar legislation in the past and declined to do so.

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