A woman's decision to take drugs while pregnant can constitute child abuse if it causes bodily injury to the infant after birth, a state appellate court has ruled, addressing a first impression issue.

A three-judge panel of the Pennsylvania Superior Court ruled Wednesday that a woman who tested positive for marijuana and opiates after giving birth could be found to have committed child abuse if the child suffered harm as a result of the drug use. The ruling reversed a decision by the Clinton County Juvenile Division, which said the Child Protective Services Law does not allow a mother's action 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 fits within the definition of the law.

“Under the plain language of the statute, mother's illegal drug use while pregnant may constitute child abuse if the drug use caused bodily injury to the child,” Moulton said. “If Children and Youth Services establishes that through mother's prenatal illegal drug use she 'intentionally, knowingly or recklessly' caused, or created a reasonable likelihood of, bodily injury to child after birth, a finding of 'child abuse' would be proper.”

According to court records, the mother, who was not named in the opinion, tested positive for suboxone after she gave birth to the child, identified as L.B. in the opinion. Suboxone is a drug used to treat opiate addiction, but the mother did not have a prescription, court records said. The baby began suffering withdrawal symptoms after it was born, according to court records.

Moulton was joined by Judge Victor Stabile.

Senior Judge Eugene Strassburger issued a six-page concurring opinion, saying he joined the majority's holding due to the clear language of the statute, but said either an expanded Superior Court panel or the state Supreme Court should review the case. Labeling pregnant mothers fighting addiction as child abusers might not always be in the best interest of children and could lead some to avoid prenatal treatment, he said, adding the decision could have far-ranging implications.

“While it is true that the woman must act at least recklessly for her decision to constitute child abuse, reasonable people may differ as to the proper standard of conduct,” he said, adding that decisions such as eating soft cheese, taking certain medications, traveling to countries where the Zika virus is present, or staying with a physically abusive partner could come under scrutiny.

“We should not delude ourselves into thinking that our decision does not open the door to interpretations of the statute that intrude upon a woman's private decisionmaking as to what is best for herself and her child.”

Neither Amanda Browning of the Clinton County Children and Youth Services, nor Robert Lugg of Lugg & Lugg, who represented the mother, returned a call for comment Thursday.