IN RE: LJB

On May 20, 2019, the Supreme Court of the United States denied the county’s Petition for Writ of Certiorari, officially declining to review the ruling of the Pennsylvania Supreme Court. This case is now closed.

The fundamental question of In re L.J.B. was: Can a woman’s behavior while pregnant be considered child abuse under civil law in Pennsylvania? The answer is no.

Case History

We took this case because of the significant implications for the rights of all pregnant people and people who have the capacity to become pregnant. The issue of whether a pregnant woman can be charged civilly or criminally with child abuse for her drug use during pregnancy has been a pressing issue of American law and politics for almost three decades.

In 2018, attorneys at the Women’s Law Project, law professor David S. Cohen, along with Robert Lugg of Lugg & Lugg in Lock Haven successfully petitioned the Pennsylvania Supreme Court to review a decision from the Superior Court that held that a woman can be charged with civil child abuse for using drugs when pregnant.

On April 3, 2018 the Supreme Court overruled the trial court and granted allocatur to review the Superior Court’s determination.

On May 3, 2018, WLP submitted its main brief to the Supreme Court. Four different amicus briefs supporting WLP’s position were filed as well – 1) a child welfare brief from the Support Center for Child Advocates, 2) a public health and maternal welfare brief from Community Legal Services and the National Advocates for Pregnant Women, 3) a drug policy brief from the Drug Policy Alliance, and 4) a constitutional law brief from the ACLU of Pennsylvania.

We were successful.

On December 28, 2018 in a 5-2 opinion, the Pennsylvania Supreme Court ruled that alleged behavior while pregnant does not constitute child abuse under Pennsylvania’s Child Protective Services Law (CPSL), reversing the Superior Court’s decision.

“This ruling is a resounding victory for all pregnant people,” says attorney David S. Cohen, Professor of Law at the Thomas R. Kline School of Law at Drexel University and member of the WLP Board of Trustees.

“As we argued, allowing people to be classified as child abusers under state law in response to alleged behavior while pregnant contradicts the clear legislative intent of the law. It also would set a dangerous precedent wherein nearly any behavior while pregnant, from eating blue cheese to undergoing chemotherapy, could be considered child abuse. We thank the court for reviewing the Superior Court’s ruling and protecting the rights of pregnant people.”

From the majority ruling authored by Justice Donohue:

We address here … whether a woman’s use of opioids while pregnant, which results in a child born suffering from neonatal abstinence syndrome (“NAS”), constitutes “child abuse” as defined. We conclude, based on the relevant statutory language, that a mother cannot be found to be a perpetrator of child abuse against her newly born child for drug use while pregnant. We therefore reverse the decision of the Superior Court and remand the matter for reinstatement of the trial court’s order…

The Superior Court thus created a statutory relationship between a pregnant woman and a fetus that the CPSL does not recognize … Moreover, once labeled as a perpetrator of child abuse, the likelihood that a new mother will be able to assimilate into the workplace and participate in activities of the child’s life would be diminished. This would contravene the laudatory goal of preserving family unity and a supportive environment for the child.

The victory in In re: LJB has profound significance for the rights of pregnant people, or any person with the biological ability to become pregnant. Indeed, if the litigation were not successful, the door could have been opened to punishing all women of childbearing age for actions taken before getting pregnant, or even contemplating getting pregnant.

“We’ve worked on issues related to punishing pregnant women for decades,” says WLP Executive Director Carol E. Tracy. “Now, we’re seeing the opioid epidemic collide with escalated attacks on reproductive rights in ways that violate the rights of pregnant people. Although public policy is increasingly recognizing the opioid epidemic as a public health crisis, when it comes to pregnant women, the response all too often is punitive.”

Every major private and public health organization, including the National Perinatal Association (NPA) the American College of Obstetricians and Gynecologists (ACOG), recognized that punishing pregnant women for prenatal drug use is counterproductive to public health goals.

“Punishing pregnant women for drug use during pregnancy could open the door to punishing pregnant women for all sorts of other behaviors, including things like eating cold cuts, soft cheese, and sushi,” WLP Executive Director Carol E. Tracy said about taking the case. “Drinking wine and coffee, taking prescription medicine, traveling to countries that potentially have Zika, being treated for cancer, traveling by plane late in the pregnancy, and being assaulted by an abusive partner, too.”

Attorneys at the Women’s Law Project have worked on issues related to punishing women for prenatal drug use for over two decades, including as co-counsel to the plaintiffs in the successful U.S. Supreme Court case of Ferguson v. City of Charleston.

U.S. Supreme Court (May 20, 2019)

Denial of the county’s Petition for Writ of Certiorari (May 20, 2019)

PA Supreme Court Ruling (Dec. 28, 2018)

PA Supreme Court Majority Opinion (Dec. 28, 2018)

Concurring Opinion – Justice Saylor (Dec. 28, 2018)

Concurring Opinion – Justice Dougherty (Dec. 28, 2018)

Dissenting Opinion – Justice Mundy (Dec. 28, 2018)

Additional Case Documents

Reply Brief for Appellant (filed June 4, 2018)

Brief for Appellants to the Pennsylvania Supreme Court (filed May 3, 2018)

Petition for Allowance of Appeal to the Pennsylvania Supreme Court (filed January 25, 2018)

Amici Curiae

Child Welfare Brief:

Amici curiae are child advocates, medical professionals, and toxicologists, including Frederick M. Henretig, M.D., Hallam Hurt, M.D., Juvenile Law Center, Philadelphia Department of Human Services (DHS) and Support Center for Child Advocates. Amici submit this brief in support of Appellant to amplify the discussion concerning why prenatal substance exposure is not child abuse as defined by Pennsylvania’s Child Protective Services Law (“CPSL”), 23 Pa. Cons. Stat.§ 6301, et seq., is unnecessary to protect children under CPSL, and ultimately would harm children by contravening prevailing standards of care for treatment of prenatal substance exposure and imposing lasting limitations on children and children’s families.

Public Health and Maternal Welfare Brief:

National Advocates for Pregnant Women and Community Legal Services of Philadelphia filed this brief on behalf of amici curiae, who collectively represent experts in the fields of maternal, fetal, and child health, child welfare, public health, and law, committed to the health and rights of pregnant and parenting women and their children. Amici fully incorporate the legal and constitutional arguments made by the mother in this case, and write separately in an effort to assist the Court by bringing to bear relevant information which militates against the judicial expansion of Pennsylvania’s child abuse law to address pregnancy. Amici are concerned that allowing this expansion of the law will undermine public health and the interests of children and families. Applying the child abuse law to actions, decisions, and conditions of pregnant women undermines their human rights and threatens maternal and fetal health by deterring pregnant women from seeking medical care.

A Drug Policy Brief:

Amici are two nonprofit organizations, the Drug Policy Alliance, which leads the nation in promoting drug policies that are grounded in science, compassion, health, and human rights, and Families for Sensible Drug Policies, which represents families impacted by substance use and advances comprehensive public health approaches, best healthcare practices, reality-based education and family-friendly drug policy reform, and 8 nationally recognized experts in health, psychology, medicine, and law. Amici bring to this Court’s attention that expanding the definition of “child abuse,” under the Child Protective Services Law, to include actions taken by a pregnant woman that may affect her newborn’s health is detrimental to maternal, fetal, and child health. The Superior Court’s holding – that women may found to be a “perpetrator” of “child abuse” and registered under the Child Protective Services Law (“CPSL”)
for her actions while pregnant that might affect the health of her newborn – is contrary to broadly accepted medical, public health, and scientific evidence.

Constitutional Law Brief:

ACLU of Pennsylvania and Feminist Majority Foundation filed this brief arguing this case is a case of statutory interpretation: This Court can and should interpret the CPSL far more narrowly. In holding that any act or omission while pregnant, or even the existence of an underlying health condition that might affect the health of a child once born, could form the basis of a charge of child abuse, the Superior Court decision violates a number of fundamental principles of statutory interpretation.