The Pennsylvania Supreme Court ruled that a mother who used opioids and marijuana during her pregnancy cannot commit child abuse under the Child Protective Service Act (CPSL), 23 Pa.C.S.A. 6301.

A divided Pennsylvania Supreme Court issued its opinion interpreting the CPSL on Dec. 28.

The case involved a newborn girl who spent 19 days in the hospital, being treated for drug dependence that caused severe withdrawal symptoms. Two weeks before the girl was born the mother, known as A.A.R., tested positive for opiates, marijuana and benzodiazepines.

The decision comes in the shadow of an opioid crisis in this country. The latest statistics show Pennsylvania leading the nation in fatal overdoses, with about 5,400 in 2017.

In fact, the opinion in In the Interest of L.J.B., No. J-57-2018 authored by Justice Christine Donohue acknowledged in a footnote that Gov. Tom Wolf took the unprecedented step of proclaiming the heroin and opioid epidemic a statewide disaster emergency.

According to Reuters, opioid abuse among pregnant women affected 6.5 out of every 1,000 delivery hospitalizations in 2014, up from 1.5 per 1,000 in 1999, as tracked by the U.S. Centers for Disease Control and Prevention.

In this case, A.A.R. was in jail. She was released and relapsed into drug use, before she learned she was pregnant. She sought treatment for her addiction but relapsed again.

L.J.B. was born on Jan. 27, 2017. According to Donohue's opinion, the child immediately displayed signs of neonatal abstinence syndrome. Clinton County Children and Youth Social Services took L.J.B. into emergency protective custody after her birth, and accused A.A.R. of child abuse.

The Juvenile Court ruled that L.B.J. was a dependent pursuant to the CPSL but conducted a separate hearing to determine if A.A.R.'s drug use while pregnant was child abuse.

The Juvenile Court held that Children and Youth Services “cannot establish child abuse in this matter on the actions committed by mother while child was in fetus.”

The Superior Court reversed agreeing that the CPSL does not include abuse of a fetus or unborn child, but concluded that the “Mother's drug use is a recent act or failure to act under 6303 (b.1) and (5) of the CPSL.”

The Supreme Court took the case as a matter of first impression.

This is not a criminal matter. Pennsylvania law already makes clear that mothers cannot be prosecuted for harming their fetuses.

Crimes against the Unborn Child Act, 18 Pa.C.S.A. 2601 makes it a crime to injure or kill an unborn child. However, the law also establishes three exceptions: it cannot be used to prosecute people who perform legal abortions, medical personnel or pregnant women for harming their own unborn children.

According to the Pittsburgh Post-Gazette, when legislators were debating the bill before it became law in 1997, opponents worried it would lead to the prosecution of pregnant women—but supporters said that could not happen because of the protection written into the law. The law has been used regularly when a pregnant woman's unborn child is injured or killed by a third party.

“These statutes are not intended to prosecute pregnant women, as you can clearly see from the way the statute is written,” Sara Rose, staff attorney for the American Civil Liberties Union of Pennsylvania, told the Post-Gazette in 2017 when prosecutors in Butler County sought to prosecute a pregnant woman under the statute. “I don't see, based on the plain language of the statute, how you can charge a pregnant woman.”

At issue was whether Kasey Rose Dischman could be convicted of aggravated assault of her unborn child for overdosing in June 2017 when she was 30 weeks into her pregnancy. Dischman went into cardiac arrest and her child had to be delivered prematurely.

Butler County Judge William R. Shaffer dismissed that charge after finding that, although Dischman is accused of committing a “senseless, selfish and heinous act,” the law does not allow the aggravated assault count to be applied in cases where the victim is the mother's own unborn child.

The district attorney appealed to the Superior Court.

Superior Court Judge Carolyn H. Nichols concluded that Pennsylvania does not criminalize the prenatal acts of mothers-to-be. As a result, a pregnant woman who overdoses on illegal drugs cannot be prosecuted for assaulting her unborn child.

In A.A.R.'s appeal the definitions as set forth by the legislature in the CPSL are crucial. Unlike the Crimes Against the Unborn Child Act, 18 Pa.C.S.A.2601 as read in conjunction with the Abortion Control Act 18 Pa.C.S.A., 3220 the CPSL does not include a fetus or unborn child in its definition of “child.”

A child is defined as any person under the age of 18. The CPSL defines “child abuse” as “intentionally, knowingly or recklessly … causing bodily injury to a child through any recent act or failure to act.” A “perpetrator” of child abuse is defined as—for purposes of this case—a parent of a child, 23 Pa.C.S.A. 6306 (a) (1).

The Supreme Court zeroed in on the definition of “perpetrator.” L.J.B.'s mother contended that pursuant to the clear language of CPSL, she did not commit “child abuse” while she was pregnant because there was no “child,” and she therefore was not a “perpetrator.”

A “perpetrator” is “a person who has committed child abuse under the CPSL,” 23 Pa.C.S.A. 6303 (a). As the parties in this case agreed, the CSPL's definition of a “child” does not include a fetus or an unborn child.

Although A.A.R. used illegal drugs while pregnant that caused bodily injury to L.J.B. she was not a perpetrator of child abuse. A.A.R. was not yet a parent and A.J. B. was not yet a child.

As a result, according to the Pennsylvania Supreme Court, a mother cannot be found to have committed child abuse against a child based on her illegal drug use while pregnant because she was not a perpetrator at the time of the drug use.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner's Toll,” 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.