The issue of whether a pregnant woman can be charged civilly or criminally with child abuse for her drug use during pregnancy has been a pressing issue of American law and politics for almost three decades.
Attorneys at the Women’s law Project have worked on issues related to punishing women for prenatal drug use for over two decades, including as co-counsel to the plaintiffs in the successful U.S. Supreme Court case of Ferguson v. City of Charleston.
The Women’s Law Project is now co-counseling another case involving drug use during pregnancy, this one before the Pennsylvania Supreme Court. Last week, the Law Project, along with Robert Lugg of Lugg & Lugg in Lock Haven, asked the state Supreme Court to review a decision from the Superior Court that held that a woman can be charged with civil child abuse for using drugs when pregnant.
At issue in this particular case, In re L.J.B., is whether or not a woman’s use of illegal drugs can constitute child abuse if, by using the illegal drugs, the woman intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of, bodily injury to a child after birth, under Pennsylvania law.
“This case is incredibly important because, as the concurring judges on the Superior Court recognized, if women can be found to be child abusers based on actions taken while pregnant, almost any activity could ultimately lead to such a finding, such as drinking alcohol, smoking cigarettes, exercising too much, traveling to a foreign country, and so on,” said Professor David S. Cohen, a WLP Board Member who is co-counsel on the case (along with WLP Executive Director Carol Tracy). “We cannot allow Pennsylvania to punish pregnancy in this manner.”
This case raises significant—and timely, given we are amid an opioid public health emergency—issues of substantial public importance.
What is at stake?
This case may have profound implications for public health.
Every major private and public health organization, including the National Perinatal Association (NPA) the American College of Obstetricians and Gynecologists ACOG), recognizes that punishing pregnant women for prenatal drug use is counterproductive to public health goals.
From a statement issued by NPA: “NPA opposes punitive measures that deter women from seeking appropriate care during the course of their pregnancies. . . . NPA supports comprehensive drug treatment programs for pregnant women that are family-centered and work to keep mothers and children together whenever possible.”
Other organizations agree — punishing pregnant women does not help result in healthy pregnancies but rather scares women from seeking prenatal care and drug treatment, making everyone less healthy.
This case may have profound implications for women’s rights.
This case intersects with important constitutional issues, and may have broad implications for all pregnant women, and perhaps all women of child-bearing age.
“Punishing pregnant women for drug use during pregnancy could open the door to punishing pregnant women for all sorts of other behaviors, including things like eating cold cuts, soft cheese, and sushi,” says WLP Executive Director Carol E. Tracy. “Drinking wine and coffee, taking prescription medicine, traveling to countries that potentially have Zika, being treated for cancer, traveling by plane late in the pregnancy, and being assaulted by an abusive partner, too”
Indeed, the door could open to punishing all women of childbearing age for actions taken before getting pregnant, or even contemplating getting pregnant.
The lower court’s decision, if allowed to stand, could also lead some women who know that they are dealing with an untreated substance abuse problem to choose to terminate their pregnancies, implicating important principles of reproductive justice and rights.
Clinton County Youth Services, the opposing party in the case, will respond to the petition soon, and the Supreme Court will decide whether to hear the case sometime this spring.
You can read the petition here.
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