The Pennsylvania Supreme Court has been asked to decide whether drug abuse during pregnancy can be punished as child abuse under state law.

That issue, which has torn American law and politics since the crack epidemic of the 1980s, is stirring renewed debate as the opioid crisis spawns another generation of newborns hooked on their mothers'  drugs.

The case in question, In the Interest of L.J.B., involves a woman who gave birth in February 2017 at Williamsport Hospital. Clinton County Children and Youth Services (CYS) alleged she tested positive for opiates, benzodiazepines (anti-anxiety drugs that can heighten the effect of opiates) and marijuana, and that her infant spent 19 days at the hospital being treated for withdrawal symptoms. CYS took custody of the baby, accusing the mother of child abuse under Pennsylvania's Child Protective Services Law.

In the ensuing legal battle, the baby's parents won the first round. Clinton County Court of Common Pleas concluded there was no abuse because the mother's actions affected her fetus, and the law does not consider a fetus to be a child.

On appeal to state Superior Court, CYS argued that the mother knew her baby would suffer through withdrawal after birth. A three-judge panel ruled her illegal drug use might constitute child abuse under the law "if it is established the mother intentionally, knowingly, or recklessly caused or created a reasonable likelihood of bodily injury to a child after birth." They sent the case back to the lower court for further proceedings.

However, two of the Superior Court judges added a separate opinion that urged the state Supreme Court to review it. Punishing drug abuse as child abuse, the two judges warned, could deter women from getting prenatal care and drug rehabilitation, break up families, and open the door to penalizing many other choices during pregnancy.

"Should she travel to countries where the Zika virus is present? Should she obtain cancer treatment even though it could put her child at risk?" wrote Superior Court Judge Eugene B Strassburger. "I question whether treating as child abusers women who are addicted to drugs results in safer outcomes for children."

Late last month, the mother's attorneys — including Drexel University law professor David Cohen and Carol Tracy of the Women's Law Project in Philadelphia – formally petitioned the state's high court to take up the case. There is no timeframe for the court to reply.

Drexel University law professor David Cohen
David Cohen
Drexel University law professor David Cohen

"Our position is that actions taken while pregnant are not what the state statute is supposed to cover," Cohen said in an interview. "That's not what the legislature intended, and it would raise serious constitutional issues."

Lawyers for CYS declined to comment.

The severity of newborn drug withdrawal varies. The symptoms – including inconsolable crying, tremors, vomiting, diarrhea — are usually treated with decreasing doses of oral morphine or methadone, both opioid medicines.  Studies of the long-term effects of withdrawal on health and development are inconclusive, and many findings are hard to distinguish from the effects of poverty.

The federal child abuse law, and most state child abuse statutes, are designed to help – not punish –  women in addiction by identifying them when they give birth and connecting them to social services.

In their petition, the mother's lawyers point out that several Pennsylvania state senators introduced a bill in 2011 to explicitly include drug use by pregnant women as child abuse, but the proposal never got beyond the Senate Committee on Aging and Youth.

The petition also notes that professional societies, including the National Perinatal Association and the American College of Obstetricians and Gynecologists, oppose punitive approaches. "Seeking obstetric-gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing," the ob-gyn group says.