For the Defense - Vol. 4, Issue 2 - 17

bodily harm to the child after the child was born.
The lawyer for the mom objected to the child
abuse allegation, claiming that the CPSL did not
apply to actions taken before the child was born.
The lower court agreed, but the Superior Court
reversed, ruling that the law applies to actions
taken before birth that have an effect on the
child once born.3 The Superior Court opinion was
unusual. The main opinion was unanimous, and it
argued that the simple statutory language applied
here. However, there was a concurring opinion
from Judge Strassburger that was joined by the
author of the main opinion, Judge Moulton.4
What made this concurrence particularly
unusual was that Judge Strassburger was highly
critical of the majority opinion in several ways.
First, the concurrence disagreed with the majority
that its holding could be limited to just illegal drug
use during pregnancy. Judge Strassburger wrote
that "although the Majority limits its decision to
illegal drug use during pregnancy, its construction
of the statute supports no such limitation. 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
decisionmaking as to what is best for herself and
her child."
Second, Judge Strassburger then wrote at
considerable length about all the ways that
pregnant women could act during their pregnancy
that might affect the child after birth. He
explained:
There are many decisions a pregnant woman
makes that could be reasonably likely to
result in bodily injury to her child after birth,
which may vary depending on the advice
of the particular practitioner she sees and
cultural norms in the country where she
resides. Should a woman engage in physical
activity or restrict her activities? Should she
eat a turkey sandwich, soft cheese, or sushi?
Should she drink an occasional glass of wine?
What about a daily cup of coffee? Should
she continue to take prescribed medication
even though there is a potential risk to the
child? Should she travel to countries where
the Zika virus is present? Should she obtain
cancer treatment even though it could put
her child at risk? Should she travel across the

country to say goodbye to a dying family
member late in her pregnancy? Is she a child
abuser if her partner kicks or punches her in
her abdomen during her pregnancy and she
does not leave the relationship because she
fears for her own life?
Judge Strassburger concluded that "any act"
by a pregnant woman could be child abuse if
it "creates a reasonable likelihood of bodily
injury to a child once he or she is born, so long
as she consciously disregards a substantial and
unjustifiable risk that such an injury may result."
He pointedly ended this section of his opinion,
"This is quite broad indeed," and then called upon
the state Supreme Court to review the case for
these reasons.
After the Superior Court decided the case, I,
along with lawyers from the Women's Law Project
(where I was spending time working while on
sabbatical), agreed to co-counsel the case with
the mom's original attorney, Robert H. Lugg from
Lugg & Lugg Law Offices in Lock Haven. We asked
the Pennsylvania Supreme Court to review the
case because we were concerned that if a woman
could be found to be a child abuser for actions
taken during pregnancy that had an effect on her
child, almost any pregnant woman could be swept
into the child abuse system. After all, as Judge
Strassburger recognized, it's not only illegal drug
use during pregnancy that can have an effect on
a child. Other factors such as how much coffee a
woman drinks, whether she smokes or consumes
alcohol, if she eats sushi, whether she travels on
a plane late in her pregnancy, what medicines
she takes, her diet, how much she exercises,
and whether she keeps all of her prenatal care
appointments, can also have an effect on her
child.5 Taking a step back even further, if a
non-pregnant woman fails to take folic acid
supplements, that increases the chance that a child
from a subsequent pregnancy might have neural
tube defects.6
Given the voluminous advice which women
receive before and during pregnancy about how to
act or not act in order to have a healthy child, the
situations are almost endless in which a woman's
actions or non-actions during pregnancy might
possibly cause harm to her child once born. If
those actions can be labeled child abuse, the state
Vol. 4, Issue 2

l

For The Defense

17
For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2
