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A sharply divided Pennsylvania Supreme Court has ruled that taking an opioid medication while pregnant and thereby causing the baby to suffer withdrawal symptoms after it is born cannot constitute child abuse.

The court issued a plurality ruling Friday morning in the case In the Interest of L.J.B., which, according to one justice, “emanates” directly from the looming opioid epidemic that has hit Pennsylvania especially hard.

The high court's ruling, which reversed a decision by the state Superior Court, focused on the language of the Child Protective Services Law, and said that, since the definition of “child” in the statute did not include a fetus, a pregnant woman cannot fit the definition of a “perpetrator” under the law.

“As the parties agree, and the Superior Court found, the CPSL's definition of a 'child' does not include a fetus or an unborn child,” Justice Christine Donohue, who wrote the plurality's 16-page opinion said. “Had the General Assembly intended to include a fetus or unborn child under the protections of the CPSL, it would have done so, just as it has in other statutory schemes.”

Donohue was joined by Justices Max Baer and David Wecht. Chief Justice Thomas Saylor issued a concurring decision that Justice Kevin Dougherty joined. Dougherty also wrote a separate concurring opinion. Justices Sallie Updyke Mundy wrote a dissenting opinion that Justice Debra Todd joined.

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

In February 2017, the Clinton County Children and Youth Social Services Agency sought protective custody of the child, contending it was the victim of child abuse, but the Clinton County Juvenile Division determined that the CPSL did not allow a mother's actions to be considered child abuse if they were undertaken while the child was a fetus.

However, in December 2017, a Superior Court panel, led by Judge H. Geoffrey Moulton, who wrote the majority's opinion, disagreed, and said that, although a fetus or “unborn child” does not meet the definition of a “child” under the law, once the infant is born it clearly fit within the definition of the law.

Donohue disagreed with that logic Friday, and said the fact that a person can, at some later date, qualify as a “perpetrator” under the law does not bring that person's earlier actions under the purview of the CPSL. She also said that labeling a woman as a perpetrator of child abuse would not prevent the same situation from occurring and would not further the goals of the law.

“Moreover, once labeled as a perpetrator of child abuse, the likelihood that a new mother will be able to assimilate into the workforce and participate in activities of the child's life would be diminished,” Donohue said. “This would contravene the laudatory goal of preserving family unity and a supportive environment for the child.”

Attorney David Cohen of the Drexel University Thomas R. Kline School of Law, who argued on behalf of the mother before the Supreme Court in September, said the ruling was a “great victory for public health, women's rights and children's rights.”

“It means that people dealing with addiction and other problems during pregnancy are going to be treated for a medical condition, as opposed to being treated as child abusers and being punished by the state,” he said. “That's good for everyone.”

Amanda Beth Browning of the Clinton County Children and Youth Services did not return a call seeking comment.

(Copies of the 23-page opinion in In The Interest Of: L.J.B., A Minor, PICS No. 19-0002, are available at http://at.law.com/PICS.)