Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Pa. Supreme Court Rules on Mothers' Drug Use While Pregnant Justices' Decision States That It Isn't Child Abuse

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Pa. Supreme Court Rules on Mothers' Drug Use While Pregnant Justices' Decision States That It Isn't Child Abuse

Article excerpt

Pennsylvania's highest court ruled Friday that mothers who use illegal drugs while pregnant cannot be considered perpetrators of abuse against their newly born children under the state's child protection law.

The decision is the latest addition to the debate over how to address the prevalence of substance use, particularly opioid use, during pregnancy. One camp, including some prosecutors and some child protective services, views drug use as irreparable harm to the fetus and seeks to address it punitively. The other camp, including some medical providers and civil liberties advocates, views pregnancy and maternity as an opportunity to treat addiction.

The state Supreme Court's ruling adds to a run of successes for the second camp. The court majority said the law's definition of a child does not include fetuses or unborn children, and victims of perpetrators must be children under the Child Protective Services Law.

The decision comes on the heels of a state Superior Court ruling in August that upheld a Butler County judge's decision that a woman could not be charged with assault against her fetus for overdosing on heroin while pregnant. The 1997 statute that makes it a crime to hurt or kill an unborn child specifically exempts pregnant women - in addition to abortion providers and medical personnel - from being charged with hurting their own fetuses.

Butler County Common Pleas Judge William Shaffer called that woman's alleged act "senseless, selfish and heinous" but said he was constrained by the law. Butler County prosecutors appealed his ruling but did not appeal the Superior Court ruling.

The rulings set precedents that could be increasingly relevant.

According to a report released this month by the Pennsylvania Health Care Cost Containment Council, opioid use during pregnancy is more than five times more common than it was at the beginning of this century, and now makes up almost half of all maternal substance use. Opioid use was present in almost 2 percent of Pennsylvania maternal stays from 2016 to 2017.

An even bigger fraction of southwestern Pennsylvania pregnancies involve opioid use. In Allegheny County, the rate was over 2.5 percent during that period.

In Allegheny County, the nonpunitive approach has held sway. County Department of Human Services spokeswoman Elaine Plunkett said the Supreme Court ruling matches existing practices by county Children Youth and Families.

It is also consistent with the approach medical systems are taking.

In 2014, Magee-Womens Hospital of UPMC introduced concurrent treatment for opioid dependency to prenatal care at its Pregnancy Recovery Center, which it expanded to five outpatient treatment centers in 2017. Last summer, it added a Parent Partnership Unit, which offers extended postnatal stays to new moms whose babies are born in withdrawal from opioids.

Patty Genday, executive director of women's services at Magee-Womens, told the Pittsburgh Post-Gazette at the time that pregnancy and new motherhood marked an opportunity to get women with opioid dependency into appropriate care.

"Every woman wants to have a healthy baby," Ms. Genday said. UPMC did not respond to requests for comment Friday.

Two justices dissented from the Supreme Court child abuse decision. They wrote that the child protection law should apply to injuries to the child that become evident after birth, even when the actions that caused the injuries occurred during the pregnancy.

"The facts in this matter more closely resemble neglect cases where the injury manifests at some point in time after the neglect as in cases of malnourishment from lack of food, or suffering from a severe diaper rash from failure to routinely change diapers," wrote Justice Sallie Mundy, joined by Justice Debra Todd. …

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