When an infant is born addicted to drugs, the mother cannot be charged with child abuse. That was the Dec. 28 decision of the Pennsylvania Supreme Court, which found that a fetus is not a child and therefore not protected under the state’s child protection law.
A state senator from western Pennsylvania who objects to the decision plans to offer a bill to protect them.
Sen. Don White, an Indiana County Republican, is drafting legislation that he says will hold women who knowingly and willingly use illegal drugs while pregnant accountable for the abuse of their children.
“Regardless of what the court may rule, a mother’s responsibility begins before her child is born and that should not be erased by a perceived ambiguity in the law,” White said in a press release.
The American Civil Liberties Union of Pennsylvania, which filed as a party in the case itself and on behalf of the Feminists Majority Foundation, says the issue is a lot more complex.
“Nobody wants pregnant women to do drugs, but we have to think of the actual ramifications of a law like this,” said ACLU senior staff attorney Sara Rose.
Rose noted the U.S. Supreme Court’s interpretation of the 14th Amendment to the U.S. Constitution that guarantees women the right to make a decision about bearing children.
“A woman who has a drug use disorder and wants to have a child would be penalized if she decided to have the child and then could not conquer the addiction,” Rose said. “A woman who had an abortion would not be penalized.”
The proposed rule would also treat women differently than men, she said. Addicted, expectant fathers don’t get penalized, Rose said.
“When you penalize women for something they do during pregnancy, it deters them from seeking medical care. It’s counterproductive, and it is not going to stop women from using drugs while pregnant,” Rose said.
Neonatal abstinence syndrome happens when a baby suffers withdrawal after being exposed to drugs, most often opioids, in the womb, according to the March of Dimes. In fiscal year 2017, nearly 2,000 babies in hospitals across the state had the syndrome, a study by the Pennsylvania Health Care Cost Containment Council shows.
The problem is common enough for Reading Hospital, part of Tower Health, to have specialized treatment plans for affected babies in its neonatal intensive care unit, spokesman Geoffrey Roche said.
The issue came before the state’s high court after Clinton County Children and Youth alleged that an infant girl had been abused through her mother’s addiction.
While pregnant, the mother tested positive for opiates, benzodiazepines and marijuana.
The baby, born Jan. 27, 2017, suffered withdrawal symptoms, including tremors, excessive suck, increased muscle tone and loose stools, which doctors treated with morphine, court papers say.
The baby spent 19 days in the hospital. During that time, the mother left the baby and did not consistently check on her.
On Feb. 10, 2017, the juvenile court ordered the baby to remain in the care of children and youth, saying the baby was a victim of child abuse as defined by the Pennsylvania Child Protective Services Law. It said the mother “caused bodily injury to a child through a recent act or failure to act.”
The mother argued that the Child Protective Services Law does not protect a fetus so her actions could not be deemed child abuse.
In December, the state Supreme Court agreed because the law does not specifically mention the unborn.
“The sad part about the decision is the lack of protection for a child when that child is unborn,” said Tom Shaheen, vice president for policy at the Pennsylvania Family Institute. “In Pennsylvania, we have pretty stringent child protective laws. There is a fault in the law, that we are protecting children after they are born but not in the womb.”