Pennsylvania Supreme Court: Drug use during pregnancy isn't child abuse

This may not sound like it’s a case about abortion but it is. The Pennsylvania Supreme Court overruled a lower court which had determined that a woman could be held liable for child abuse because she used drugs during her pregnancy and gave birth to a baby who spent two weeks detoxing in a hospital. The reasoning here is simple: Prior to birth a fetus isn’t a person thus the law can’t protect them from harm. From the Associated Press:

The Supreme Court’s main opinion said the law’s definition of a child does not include fetuses or unborn children, and victims of perpetrators must be children under the Child Protective Services Law.

“The fact that the actor, at a later date, becomes a person who meets one of the statutorily-defined categories of ‘perpetrator’ does not bring her earlier actions — even if committed within two years of the child’s bodily injury — under the CPSL,” wrote Justice Christine Donohue.

Two judges dissented, arguing that this case should rest not on whether the fetus was a person at the time of the abuse (i.e. when mom was using drugs) but whether it was a person at the time the injury took place (when the baby spent two weeks in a hospital detoxing).

“The facts in this matter more closely resemble neglect cases where the injury manifests at some point in time after the neglect as in cases of malnourishment from lack of food, or suffering from a severe diaper rash from failure to routinely change diapers,” wrote Justice Sallie Mundy, joined by Justice Debra Todd.

The case involves a girl who spent 19 days in Williamsport Hospital last year after she was born, being treated for drug dependence that caused severe withdrawal symptoms. Her mother had relapsed into drug use after getting out of jail, and two weeks before the girl was born in January 2017 the mother tested positive for opiates, marijuana and benzodiazepines, Donohue wrote…

Superior Court Judge Geoffrey Moulton wrote a year ago that a mother’s substance abuse while pregnant “may constitute child abuse” if authorities can prove she “intentionally, knowingly, or recklessly caused, or created a reasonable likelihood of, bodily injury to a child after birth.” Moulton wrote the word “after” in boldface.

The argument made by the woman’s attorney is that it would be counter-productive to make women liable for actions that harmed their unborn children:

In a filing with Supreme Court, the woman’s lawyers said most states, with a few exceptions, “have taken a non-punitive approach to the issue.”

“Almost every major medical and public health organization has recognized that punishing women for drug use during their pregnancies is counterproductive to public and private health,” wrote lawyers for the mother, identified by initials in court records.

“The rationale here is simple — women with a substance abuse disorder during pregnancy need treatment, both for their drug use and prenatal care, and the threat of being punished by the state will drive women away from treatment, thus risking their own and their child’s health,” her lawyers argued.

That seems to make sense until you realize that the same reasoning could apply to a mother (or father) of any young child. For instance, say mom decides to go on a bender and forgets to feed her one-year-old for a couple days. Well, you could charge her with abuse and neglect, but according to this reasoning threatening such charges could lead the mother to decide not to bring the sick infant to the hospital for emergency care.

Similarly, if dad gets drunk and beats up his five-year-old the fear of being charged for that crime would make it less likely he’ll bring the injured child to a hospital. No doubt this is true. In fact, the worse the injury to the child, the more the abuser is likely to want to avoid any place that might report the abuse. And yet, we still have child abuse laws on the books. We don’t say that breaking a child’s arm should be decriminalized because it makes it more likely he’ll get to a hospital. At some point, we criminalize bad behavior by parents even if the threat of punishment makes the parents want to conceal evidence of the crime (in the form of the injured child) from authorities.

The PA court’s decision makes more sense if you assume what is really at stake is giving the pro-life movement further grounds to claim a child is a person prior to birth. If that’s your main concern, then this decision makes perfect sense. And that is definitely a major concern of the pro-abortion movement. Yesterday the NY Times published a massive editorial which devoted several thousand words to arguing that fetal personhood is a danger to women’s rights. Here’s a very small sample:

Anti-abortion activists have patiently been working to pass fetal protection laws not only in hopes of establishing that a fetus is a person entitled to full rights, but also to create a vehicle for overturning Roe v. Wade. Many of these activists are hoping that the new conservative majority on the Supreme Court is prepared to take that step.

Alabama, which has prosecuted more pregnant women in the name of fetal protection than almost any other state in the nation, last month became the only state to amend its Constitution to give “unborn children” the right to life, a guarantee that conflicts with the legal protections enshrined in Roe.

Alabama and other states would better serve the interests of children by putting less energy into manufacturing legal fights and more into ensuring the dignity and protection of women.

The entire editorial is a one-sided argument which starts from the presupposition that unborn babies should have no rights and concludes based on a handful of cases that fetal personhood is an imminent danger to women’s rights because it could eventually overturn Roe.

Every human right is limited when it comes into contact with another human being. Your right to swing your fist ends at the tip of my nose. That’s why pregnancy is such a special case and abortion is such a contentious issue. Assuming from the start that one side has no rights to protect makes it easy to argue the case that women’s rights are being unfairly infringed upon. No doubt the PA court ruling and the NY Times editorial will be a hit with people who already agree with the underlying premise.

But not everyone does agree with this premise, and for good reason. A viable unborn baby (now as early as 24 weeks) is a baby who should not be killed or endangered. Of course not all babies born this early survive, but many do. This little preemie born in Australia (I picked this clip at random off YouTube, there are dozens more like it) is a person and was just as much a person the moments before he was born. If our laws don’t recognize that at present then we’ll keep pushing to change it until it’s in line with reality.

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