Drug Use During Pregnancy Is Not Child Abuse, Rules Pa. Supreme Court

Last Updated: Jan 3, 2019

pregnant-womanOn Dec. 28, 2018, the Supreme Court of Pennsylvania issued its decision in the case of In the Interest of L.J.B. The Supreme Court held that a mother cannot be found to be a perpetrator of child abuse against her newly born child for drug use while pregnant.

At issue in In the Interest of L.J.B. was whether a mother’s use of opioids while pregnant, which resulted in her child suffering from neonatal abstinence syndrome upon birth, constituted child abuse as defined by the Child Protective Services Law (CPSL). A full summary of the case can be accessed here.

To reach its decision, the Supreme Court examined the statutory language of the CPSL. The CPSL defines a “child” as an individual under 18 years of age. The CPSL includes no definition of or provisions regarding a fetus. Under the CPSL, a “perpetrator” is a person who commits child abuse. Only individuals with certain relationships to a child, such as parents, can be classified as perpetrator under the CPSL.

With these definitions in mind, the Supreme Court opined that the CPSL requires the existence of a child at the time of the allegedly abusive act in order for the actor to be a perpetrator and for the act to constitute child abuse. Therefore, since the CPSL’s definition of child does not include a fetus or an unborn child, one cannot be a perpetrator of child abuse, under the CPSL, upon a fetus.

The Supreme Court’s ruling reverses the decision of the Superior Court, which held a mother’s illegal drug use while pregnant may constitute child abuse if it caused bodily injury to her child; and remands the case for reinstatement of the trial court’s order, which held that the CPSL does not provide for a finding of child abuse due to actions taken upon a fetus.

The majority opinion was authored by Justice Donohue. Chief Justice Saylor and Justice Dougherty authored concurring opinions. Justice Mundy authoring a dissenting opinion with Justice Todd joining.

The Pennsylvania Medical Society (PAMED) joined the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) in submitting an amicus curiae brief to the Supreme Court which argued, amongst other issues, that classifying actions taken by a pregnant mother as child abuse could deter a pregnant woman from seeking medical care.

Where Can I Find Additional Information?

PAMED’s Legal Resource Center contains several Quick Consult fact sheets reviewing physicians’ obligations to report suspected child abuse. These Quick Consults thoroughly discuss the mandatory reporting process, answer several frequently asked questions regarding the reporting of child abuse, and detail signs and symptoms of child abuse.

These Quick Consults are a resource available exclusively for PAMED members and can be accessed here.

Leave a comment

Return to the art of medicine - MACRA

Norcal Mutual

Learn More