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The policy implications of whether taking a drug during pregnancy constitutes child abuse are vast and could implicate everything from the definition of a “child” to the pre-conception conduct of the mother. But, in resolving a dispute involving a mother who tested positive for opiates after giving birth, some members of the Pennsylvania Supreme Court seemed to indicate they would focus less on the broader policy implications and more on the specific language of the statute.

“This is not an issue of women's rights. It's about human rights. It's about child protection and welfare,” Amanda Beth Browning of the Clinton County Children and Youth Services said during the Supreme Court oral argument session Tuesday morning in In the Interest of L.J.B.; Appeal of A.A.R.. Her office is pushing for a finding that a woman should be found to have committed child abuse after she tested positive for suboxone and the baby began suffering withdrawal symptoms after it was born.

Browning told the justices her office was advocating for the welfare of the child.

“I have a responsibility to speak for them,” she said, before Justice Max Baer cut her off.

“They did not bring a constitutional challenge,” he said, referring to the counsel for the mother, who is referred to as A.A.R. “Why don't you argue the statute?”

In April, the justices agreed to take up the case on the first impression issues of whether “23 Pa.C.S. Section 6303 et seq. allows a mother be found a perpetrator of 'child abuse' in the event she is a drug addict while her child is a fetus[?]” and whether 23 Pa.C.S. Section 6386 is supposed to be “ limited to providing 'protective services' to addicted newborns and their families and not so expansive to permit alcoholic or addicted mothers be found to have committed child abuse while carrying a child in her womb[?]”

The main argument from the mother's counsel, David Cohen of Drexel University's Kline School of Law, was that the Child Protective Services Law says a person found to have committed child abuse must be a “perpetrator,” and, under the definition of the law, perpetrators had to be the parent of the child when the conduct occurred. Since the woman ingested the opiate before the fetus had been born, the woman could not be a parent, as the fetus was not yet a child.

The state Superior Court's decision from last year overruled a Clinton County Juvenile Division ruling that the Child Protective Services Law does not allow a mother's actions to be considered child abuse if they were undertaken while the child was a fetus. Superior Court Judge H. Geoffrey Moulton, who wrote the majority's opinion, agreed with the argument that a fetus or “unborn child” does not meet the definition of a “child” under the law, but he said that, once the infant is born, it clearly fit within the definition of the law.

Cohen told the justices that the Superior Court's reasoning failed to take into account the definition of “perpetrator.”

“They're asking you to read into the section something that's not there,” Cohen said. “This would expand the CPSL to actions and people the CPSL was never intended to address.”

In a concurring opinion to Moulton's decision, Superior Court Judge Eugene Strassburger had said the ruling could lead to similar findings in cases where, for example, pregnant women decided to eat soft cheeses, travel to countries where the Zika virus is present, or stay with a physically abusive partner.

Cohen said he agreed with Strassburger's warnings, adding that nothing in Clinton County's interpretation of the law would limit its application.

Justice Debra Todd, however, disagreed, saying she thought courts would be able to make a distinction based on the statute saying the conduct needs to be “intentionally, knowingly and recklessly” causing harm.

“The slippery slope argument is presuming too much,” Todd said. “I'm just not sure from your argument that I buy the slippery slope.”