For the Defense - Vol. 7, Issue 4 - 17

Roe was clearly the law, should serve as a warning to the criminal
defense bar. Dobbs may have opened the floodgates of prosecution
not only for health care providers but for the pregnant patient as
well.
In a non-criminal context, the question of whether the fetus is a
" child " for purposes of Pennsylvania's Child Protective Services Law
( " CPSL " ) has been addressed by our Supreme Court in In the Interest
of: L.J.B.38
amendments including one that would amend the Declaration of
Rights to state that abortion is not a protected right, has already
passed the state legislature once. If passed again next legislative
session, it could go on the ballot for ratification as early as May 2023.
Also of interest is that the Philadelphia Bar Association's Board of
In that case, the Court relied on the definitions provided
in the CPSL statute and found that a mother who takes drugs while
pregnant is not a " perpetrator " of child abuse. In reaching its
determination, the Court concluded that based on CPSL's statutory
language, a fetus is not considered a child; therefore, a pregnant
mother could not be considered a perpetrator. L.J.B. is a plurality
opinion which reversed a unanimous Superior Court. Post-Dobbs,
the CPSL may be a ripe target for the state legislature to amend the
definition of child to include " unborn child " to comport with the
language in the Crimes Code.
Looking Ahead
Among the cases to watch is Allegheny Reproductive Health
Center v. Pennsylvania Department of Human Services,39
currently
pending before the Pennsylvania Supreme Court. This case
challenges Pennsylvania's statutory Medicaid abortion coverage ban
and has the potential to define the level of constitutional protection
that abortion receives under the Pennsylvania Constitution. Antiabortion
legislators have taken the first step to preclude this
result: Senate Bill 106 proposing an array of state constitutional
Governors has recently adopted a resolution protecting reproductive
rights and opposing constitutional amendments and legislation that
would restrict or ban abortion in Pennsylvania.40
It is noteworthy, that in reaching its unanimous opinion, which
was ultimately reversed in L.J.B., the Pennsylvania Superior Court
was frighteningly aware of the potential Pandora's Box scenario the
holding might unleash. It is worth quoting the prescient concurring
opinion:
We should not delude ourselves into thinking that our
decision does not open the door to interpretations of
the (CPSL) statute that intrude upon a woman's private
decision-making as to what is best for herself and her
child . . . . 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 a 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 travel across the country to say goodbye to
a dying family member late in her pregnancy? Is she a
Vol. 7, Issue 4 l For The Defense 17
For the Defense - Vol. 7, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 4
