The Pennsylvania Supreme Court has agreed to consider whether a woman's decision to take drugs while pregnant can constitute child abuse if it causes bodily injury to the infant after birth.

Last December, a three-judge panel of the state Superior Court ruled in a case of first impression 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.”

The Supreme Court granted allocatur in the case April 3, agreeing to hear arguments on two issues: “(1) Does 23 Pa.C.S. Section 6303 et seq. allow a mother be found a perpetrator of 'child abuse' in the event she is a drug addict while her child is a fetus[?] (2) Is the intent of 23 Pa.C.S. Section 6386 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[?]”

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 decision-making as to what is best for herself and her child.”

Amanda Browning of the Clinton County Children and Youth Services, could not be reached for comment.

Robert Lugg of Lugg & Lugg, who represented the mother, said the Supreme Court “is doing the right thing” by agreeing to reconsider the Superior Court's ruling.

Lugg's co-counsel, David S. Cohen, a law professor at Drexel University's Thomas R. Kline School of Law, added, “We certainly hope that the Supreme Court's granting allocatur in the case is an indication that they're concerned about what the Superior Court did and its ramifications for all pregnant women,” not just those who abuse drugs.

Cohen noted that, under the Superior Court's interpretation of the Child Protective Services Law, “almost anything” a woman does while pregnant that leads to a negative outcome for the baby upon birth could potentially be considered child abuse. In addition, he said, it's possible the statute could even be read to cover actions the father took before conception.