For the Defense - Vol. 4, Issue 2 - 18

would be given the ability to police pregnancy
in a way that would harm women and children
alike. Women with the label "child abuser" would
be restricted from employment and volunteer
opportunities for the rest of their lives.7 Women
would also be more likely to avoid prenatal care or
drug treatment for fear of being reported, which
would harm themselves and their families.8
For these reasons, when the Supreme Court
agreed to take the case, many different groups filed
amicus briefs on behalf of the mother, including
the ACLU, the National Advocates for Pregnant
Women, Community Legal Services, and the Drug
Policy Alliance. Perhaps most importantly, several
of Pennsylvania's leading child advocacy groups
filed an amicus brief, including the Support Center
for Child Advocates, the Juvenile Law Center,
and Kidsvoice, arguing to the Supreme Court
that punishing pregnant women like this would
harm children in drastic ways. All of the groups
filing briefs agreed that the best response to the
problem of drug use during pregnancy is better
drug treatment and more accessible prenatal care.9
In other words, as almost every medical and public
health organization has recognized, this is a public
health problem, not a state punishment problem.10
On December 28, 2018, the Pennsylvania
Supreme Court agreed. In a 5-2 decision, the Court
held that the CPSL did not apply to actions taken by
the pregnant woman before birth.11 The decision
relied on technical statutory grounds, not the broad
policy concerns discussed here. The Court said that
the CPSL requires that there be a perpetrator of
the child abuse, and that the statutory definition
of "perpetrator" did not include a pregnant
woman because no child had yet been born. The
Justices were split, with Justice Donahue (for
herself and Justices Baer and Wecht) saying that
the statutory language was clear, and Chief Justice
Saylor and Justice Dougherty separately saying that
the language was ambiguous but that for policy
reasons it should be read to prohibit a claim of
child abuse in this situation. Justice Mundy, joined
by Justice Todd, dissented for the reasons in the
Superior Court decision.
Although the Supreme Court's clear decision
did not address the parade of horribles that the
various briefs put before the Court, we have already
seen the decision applied to one of the slippery
slope concerns. On January 2, the Common Pleas

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Court relied on this case to rule that a woman
was not a child abuser.12 In that case, a pregnant
woman developed serious eclampsia at the end
of her pregnancy and had seizures and ultimately
went into a coma. Her daughter was delivered by
cesarean section and was hospitalized for a week
due to respiratory distress. After the mom came
out of the coma ten days later, the county filed
a petition against her claiming she was a child
abuser, based solely on its claim that the mom
did not get sufficient prenatal care during her
pregnancy. Based on the Supreme Court case, the
Common Pleas court ruled that the mom could
not be a child abuser for conduct during her
pregnancy.
This case is part of a long history of cases that
have tried to police women's behavior during
pregnancy.13 Women have been charged with all
sorts of crimes, including manslaughter, for their
actions during pregnancy when every medical
expert agrees that the best course of action is to
get pregnant women better and more accessible
medical care.14 Punishment serves no real purpose
other than to harm women, children, and families
while also sending the message that a woman's
life and health is less valued than that of her fetus.
There is no doubt that, in today's political climate,
attacks like these are going to become more
and more common. Thankfully, the Pennsylvania
Supreme Court put a stop to one aspect of this
problem-using the CPSL to police behavior during
pregnancy.
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About the Authors
David S. Cohen is a
Professor of Law at Drexel
University Thomas R. Kline
School of Law. His research
focuses on the intersection
of constitutional law and
gender, emphasizing how
the law impacts abortion
provision. He is currently working on a new book
about the impact of anti-abortion restrictions on
abortion providers' practice of medicine.

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For the Defense - Vol. 4, Issue 2

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