IN THE SUPREME COURT OF PENNSYLVANIA NO. 10 MAP 2018

1 IN THE SUPREME COURT OF PENNSYLVANIA . NO. 10 MAP 2018. In the Interest of: , a minor Appeal of: , Natural Mother Brief for Appellant Appeal from the Order of the Superior COURT Entered on December 27, 2017, at No. 884 MDA 2017 Vacating the Order Entered May 24, 2017, of Clinton County COURT of Common Pleas, Juvenile Division, at No. CP-18-DP-0000009-2017, and Remanding for Further Proceedings Robert H. Lugg David S. Cohen (Pa. Bar No. 41262) (Pa. Bar No. 88811). 350 East Water Street 3320 Market St., Suite 232. Lock Haven, PA 17745 Philadelphia, PA 19104. (570) 748-2481 (215) 571-4714. Carol Tracy (Pa. Bar No. 40258). WOMEN'S LAW PROJECT. 125 S. Ninth St., Suite 300. Philadelphia, PA 19107. (215) 928-5770. Counsel for Petitioner CHILDREN'S FAST TRACK APPEAL. TABLE OF CONTENTS. I. STATEMENT OF JURISDICTION ..1. II. ORDER IN QUESTION ..1. III. SCOPE AND STANDARD OF IV. QUESTIONS PRESENTED ..2. V. STATEMENT OF THE CASE.

2 2. VI. SUMMARY OF ARGUMENT ..9. VII. ARGUMENT ..11. A. Neither the Definition of Child Abuse in 6303 Nor the Mandatory Reporting Provision of 6386 Allows for a Pregnant Woman's Conduct Before Birth to Be the Basis of a Child Abuse Determination..12. 1. was not a perpetrator under the CPSL at the time of the actions that form the basis of the child abuse allegation and thus cannot be found to have committed child abuse..13. a. Because there was no child under the CPSL at the time of the complained of behavior, was not a perpetrator..14. b. To commit child abuse under the CPSL, an individual must have been a perpetrator, which was not..15. c. The CPSL requires that the individual accused of child abuse be a perpetrator at the time of the alleged actions, which was not..18. 2. The General Assembly has considered the issue of drug use during pregnancy, including in 23 Pa. 6386, but has never defined child abuse to include this behavior.

3 21. i 3. Labeling women as child abusers based solely on actions taken during pregnancy is not consistent with the intent of the CPSL..29. 4. If applied to actions taken during pregnancy, the CPSL's causation language in the definition of child abuse would be irredeemably vague and would radically change child abuse determinations in a way that the General Assembly could not have intended..30. B. Applying the CPSL to Pregnant Women's Actions Would Gravely Harm Maternal and Neonatal Health..34. C. Applying the CPSL to Actions Taken Before a Child Is Born Has Monumental Implications for Women During Pregnancy and for Women and Men Before Conception..40. 1. As explained by the concurring judges in the Superior COURT , applying the CPSL here would lead to policing pregnant women for all sorts of actions taken during pregnancy..41. 2. Because the CPSL defines recent to include actions within the past two years, applying the CPSL here would lead to women and men being found to be child abusers for their pre- conception behavior.

4 45. 3. By refusing to apply the CPSL to 's actions before birth, this COURT can avoid difficult constitutional issues of reproductive rights, equal protection, and due VIII. CERTIFICATION OF COMPLIANCE WITH RULE 2135(d) ..57. CERTIFICATE OF SERVICE ..58. ADDENDUM: In re: , No. 884 MDA 2017 (Pa. Super. Ct. Dec. 27, 2017), reported at 177 308 ..A. ADDENDUM: In re: , No. DP-9-2017 (Pa. May 24, 2017) .. B. ii TABLE OF AUTHORITIES. Cases Banfield v. Cortes, 110 155 (Pa. 2015) ..17. Blum v. Merrell Dow Pharms., Inc., 764 1 (Pa. 2000) ..34. Commonwealth v. Gerstner, 656 108 (Pa. 1995) ..20. Commonwealth v. Giulian, 141 1262 (Pa. 2016) ..1. Commonwealth v. Herman, 161 194 (Pa. 2017) .. 30, 54. Commonwealth v. Kemp, 18 Pa. D. & C. 4th 53 ( 1992) ..15. v. Dep't of Pub. Welfare, 91 667 (Pa. 2014) .. 11, 29, 35. Goss v. Lopez, 419 565 (1975) ..55. Grayned v. City of Rockford, 408 104 (1972) ..54. Hatwood v. Hosp. of the Univ.

5 Of Pa., 55 1229 (Pa. Super. Ct. 2017) ..31. In re , 177 308 (Pa. Super. Ct. 2017) ..1, 6. v. Dep't of Human Servs., 150 173 (Pa. Commw. Ct. 2016) ..55. Loertscher v. Anderson, 259 F. Supp. 3d 902 ( Wis. 2017)..54. MCI WorldCom, Inc. v. Pa. Pub. Util. Comm'n, 844 1239 (Pa. 2004) ..50. Mission Funding Alpha v. Commonwealth, 173 748 (Pa. 2017) ..18. Mohamed v. Commonwealth, Dep't of Transp., 40 1186 (Pa. 2012) ..12. v. Dep't of Pub. Welfare, 801 478 (Pa. 2002) ..35. Pa. Coal Min. Ass'n v. Ins. Dept., 370 685 (Pa. 1977) ..55. Roe v. Wade, 410 113 (1973) ..51. v. Dep't of Pub. Welfare, WL 9097080 (Pa. Commw. Ct. May 19, 2009)..20. Whitner v. Von Hintz, 263 889 (Pa. 1970) ..31. iii Statutes 1 Pa. 1921(a) ..12. 1 Pa. 1921(b) ..13. 1 Pa. 1921(c) ..13. 1 Pa. 1922(1) ..18. 1 Pa. 1922(3) ..50. 18 Pa. 2601-2609 ..15. 23 Pa. 6302(a) ..29. 23 Pa. 6302(b) .. 17, 29. 23 Pa. 6303 .. 2, 24, 27, 54. 23 Pa. 6303(a) .. 13, 19, 45. 23 Pa.

6 6303( ) .. 12, 19, 27. 23 Pa. 6303( )(1) .. passim 23 Pa. 6303( )(5) .. passim 23 Pa. 6303( )(8) ..27. 23 Pa. 6304(f) ..17. 23 Pa. 6311-6320 ..22. 23 Pa. 6331 ..34. 23 Pa. (3) ..16. 23 Pa. 6340 ..35. 23 Pa. 6344(b) ..35. 23 Pa. 6344(c) ..35. 23 Pa. 6368(j) ..16. iv 23 Pa. 6386 .. passim 23 Pa. 6386(a)(1) ..23. 23 Pa. 6386(a)(2) .. 22, 24. 23 Pa. 6386(a)(3) ..23. 23 Pa. 6386(b) ..22. 23 Pa. 6386(c) ..23. 42 Pa. 5105(d)(1) ..1. 42 Pa. 724(a) ..1. 42 5106a ..21. 42 5106a(b)(2)(B)(ii)..21. Other Authorities 149 Cong. Rec. H2313, H2362 (daily ed. Mar. 26, 2003)..25. 55 Pa. Code ..17. Agricola, Eleanora, Investigating Paternal Preconception Risk Factors for Adverse Pregnancy Outcomes in a Population of Internet Users, 13 Reproductive Health 1 (2016) ..49. American Academy of Family Physicians, Preconception Care (Position Paper), ..47. American Academy of Pediatrics, A Public Health Response to Opioid Use in Pregnancy 4 (2017).

7 37. American College of Obstetricians and Gynecologists Committee on Health Care for Underserved Women, Committee Opinion 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist (2011, reaffirmed 2014), .. 38, 53. American Medical Association, Perinatal Addiction - Issues in Care and Prevention (2017), ..39. v American Society of Addiction Medicine, Public Policy Statement on Substance Use, Misuse, and Use Disorders During and Following Pregnancy, with an Emphasis on Opioids (2017), ..39. Bailey, Helen, et al., Parental Occupational Pesticide Expsosure and the Risk of Childhood Leukemia in the Offspring, 135 Int'l J. Cancer 2157 (2014) ..49. Benforado, Adam, Unfair: The New Science of Criminal Injustice (2015) ..52. Brender, Jean D., et al., Maternal Pesticide Exposure and Neural Tube Defects in Mexican Americans, 20 Annals Epidemiology 16 (2010) ..49. Brosh, Joanne E. & Miller, Monica K.

8 , Regulating Pregnancy Behaviors: How the Constitutional Rights of Minority Women are Disproportionately Compromised, 16 Am. U. J. Gender Soc. Pol'y & L. 437 (2008) ..53. Centers for Disease Control and Prevention, Before Pregnancy: Information for Men, ..48. Centers for Disease Control and Prevention, Folic Acid: Recommendations, ..46. Centers for Disease Control and Prevention, Tobacco Use and Pregnancy, ..43. Department of Health, Resident Live Births by Age of Mother, Counties and PENNSYLVANIA , 2016, ..44. Department of Human Services, Fetal Alcohol Spectrum Disorders, ..24. Feychting, Maria, et al., Paternal Occupational Exposures and Childhood Cancer, 109 Env. Health Persps. 193 (2001) ..49. Greenwood, James C., Letter to the Editor, The Lockhaven Express, Jan. 13, 2018, ..25. 1276 (Pa. 2015) ..22. 2670 (Pa. 2006) ..22. Johnsen, Dawn, Shared Interests: Promoting Healthy Births Without Sacrificing Women's Liberty, 43 Hastings 569 (1992).

9 52. vi Joint State Government Commission, Child Protection in PENNSYLVANIA : Proposed Recommendations, Report of the Task Force on Child Protection 1 (Nov. 2012), .. 26, 27. March of Dimes, Fact Sheet: Policies and Programs to Address Drug-Exposed Newborns (2014), ..36. Mateja, Walter A., The Association Between Maternal Alcohol Use and Smoking in Early Pregnancy and Congenital Cardiac Defects, 21 J. Women's Health 26. (2012) ..43. Meaney-Delman, Dana, et al., Zika Virus and Pregnancy: What Obstetric Health Care Providers Need to Know, 127 Obstetrics & Gynecology 642 (2016) ..48. Mook-Kanamori, Dennis, et al., Risk Factors and Outcomes Associated with First- Trimester Fetal Growth Restriction, 303 JAMA 527 (2010)..43. National Advocates for Pregnant Women, Medical and Public Health Statements Addressing Prosecution and Punishment of Pregnant Women, National Institutes of Health, How Do Sexually Transmitted Diseases and Sexually Transmitted Infections (STDs/STIs) Affect Pregnancy.

10 49. National Perinatal Association, Position Statement 2017: Perinatal Substance Use (2017), ..38. Oh, Sehun, et al., Prevalence and Correlates of Alcohol and Tobacco Use Among Pregnant Women in the United States: Evidence from the NSDUH 2005- 2014, 97 Preventive Medicine 93 (2017) ..44. Paltrow, Lynn, Governmental Responses to Pregnant Women Who Use Alcohol or Other Drugs, 8 DePaul J. Health Care L. 461 (2005) ..28. Popova, Swetlana, Estimation of National, Regional, and Global Prevalence of Alcohol Use During Pregnancy and Fetal Alcohol Syndrome: A Systematic Review and Meta-Analysis, 5 Lancet Global Health e290 (2017) ..33. Roberts, Dorothy E., Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991) ..53. vii Roberts, Dorothy, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (2d ed. 2017) ..53. Roberts, Sarah, & Pies, Cheri, Complex Calculations: How Drug Use During Pregnancy Becomes a Barrier to Prenatal Care, 15 Maternal & Child Health J.