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December 31, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The Pennsylvania Supreme Court has ruled that, under state law, a mother who abused a variety of addictive drugs during pregnancy did not violate the law prohibiting child abuse, despite her baby being born addicted to opiates (Bucks County, Courier Times, 12/29/18).
The case involves a girl who spent 19 days in Williamsport Hospital last year after she was born, being treated for drug dependence that caused severe withdrawal symptoms. Her mother had relapsed into drug use after getting out of jail, and two weeks before the girl was born in January 2017 the mother tested positive for opiates, marijuana and benzodiazepines, [Justice Christine] Donohue wrote.

The court ruled that the applicable statute, the Child Protective Services Law, defines “child” in such a way as to exclude the unborn.  Therefore, it would be fair to say that pretty much anything a mother does to a fetus is acceptable as far as the CPSL goes.  The fact that ingestion of alcohol and many drugs can have horrific effects on newborns and that at least some of those effects can last a lifetime still doesn’t mean the law on “child protection,” as it currently exists in Pennsylvania, can be used to protect unborn children.
Pennsylvania’s highest court ruled Friday that mothers who use illegal drugs while pregnant cannot be considered perpetrators of child abuse against their newly born children under the state’s child protection law.
The Supreme Court’s main opinion 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.
Assuming the justices are right, it’s a law that cries out for reform.  Abortion of course is a constitutionally protected act, but addicting a fetus to opiates, cocaine or alcohol knowing that it will be carried to term and thus become a person protected by the law must be called abuse.  It’s pure madness to pretend it’s not.  We know far, far too much about what fetuses, babies and older children suffer when their mothers abuse alcohol or drugs while pregnant to pretend that it’s anything but an abusive practice.

Here’s just one article on what babies go through when born addicted to opiates (Behavioral Health).

Meanwhile, the mother’s lawyer has a different opinion.
The mother’s lawyer, David S. Cohen, called the decision a victory for public health and the rights of women and children.
“There are many states that have decided by statute to label this type of behavior child abuse, but the majority do not,” Cohen said Friday. “We think that’s the right way to approach this, because this is a health issue and the worst thing you can do with a health issue is punish people. It drives people from treatment and it results in worse outcomes for everyone.”
No, Mr. Cohen, this is in no sense “a victory for the rights of children.”  There’s no way to spin that to make it make sense.  A child spent the first 19 days of her life in a hospital, without a mother, withdrawing from opiate addiction.  That’s not a victory for her, it’s a tragedy.  Whatever negative consequences will hound her for the next months and years will also not be a victory.  They’ll be like dragging an anvil chained to her ankle.

Now, Cohen has a point that it’s better public policy to de-criminalize most forms of drug use.  Addicts need help and they don’t get it in prison.  And yes, the threat of incarceration may well discourage users from seeking help for their problem.  But of course the issue before the court wasn’t a criminal matter; it was a matter of whether abusing drugs while pregnant constituted child abuse for the purposes of state intervention into the mother-child relationship.  That is, could the child be taken into foster care by the state due to the mother’s clearly abusive behavior during her pregnancy?

Fortunately, this mother pretty much solved that problem for everyone.
While her daughter was hospitalized, Donohue wrote, the mother did not check in on her or stay with her. Clinton County Children and Youth Services was granted protective custody.
So Mom first addicted the child and then, having given birth to her, abandoned her.  That of course gave the state all it needed to start finding the child a real home with real parents.

What’s remarkable about Cohen’s statement is that he considers it “punishment” by the state to take away a child who’s been abused by its parents.  It’s not.  The reason states do that is to protect children from future abuse, not to punish the parents.  Yes, parents may feel the effect as punishment, but the alternative would be to allow abuse to continue unabated and to ignore its consequences for children.  Surely even Cohen understands the danger of such a policy that naturally no jurisdiction anywhere follows.

Pennsylvania needs to change its laws.  Children born addicted to opiates, cocaine or alcohol have abusive mothers.  Period.  If the law doesn’t define abuse that way, it should.  The Pennsylvania Legislature is on notice.  Reform of the CPSL should be Job#1 for the next legislative session.

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