One year after the New Jersey Supreme Court ruled that a pregnant woman did not commit child abuse just because she tested positive for cocaine, the state has brought a similar case to the court: that of a pregnant woman who was in methadone treatment in an opioid treatment program (OTP).
This January, experts in addiction treatment and maternal and fetal health filed a friend of the court brief before the New Jersey Supreme Court, urging it to overturn a lower court ruling in which a pregnant woman in a methadone treatment program was charged with child abuse and found guilty.
In the cocaine case, on February 6, 2013, the New Jersey Supreme Court unanimously held that the state’s child protection laws don’t give child welfare authorities control over pregnant women, and that positive drug test results alone on pregnant women and newborns do not establish neglect. That case involved positive test results for cocaine. The Supreme Court held that those positive test results did not by themselves show maternal neglect.
Here’s the situation now: The state wants to call it child abuse if a woman takes prescribed methadone while pregnant. This is despite the fact that the state has a robust system in which methadone is recommended for pregnant women.
The case involves a woman—YN—who was dependent on opioid pain relievers when she learned she was pregnant. Her medical providers recommended that she obtain methadone treatment and other care, which she did, and she subsequently gave birth to a healthy baby. The baby was successfully treated for neonatal abstinence syndrome (NAS), a predictable treatable and transitory, possible side effect of maternal methadone treatment.
But because of the NAS, YN was reported to the Division of Child Protection and Permanency (DCPP, formerly the Division of Youth and Family Services), and was judged by the lower court to have abused or neglected her child. In effect, the lower court is rewriting the law by applying child abuse statutes to pregnant women and their fetuses, according to the friend of the court brief.
Advocates hope that the Supreme Court will rule, as it did last year, in favor of the mother. Lawrence S. Lustberg, of Gibbons P.C., co-counsel for the amici, said that “the New Jersey Supreme Court has been a national leader in recognizing that when cases raise scientific, medical, or other technical issues, the evaluation of these issues must be informed by existing scientific knowledge, including expert testimony.” He added, “This case should not be an exception, yet, the decision in the lower court was reached without the input of a single medical expert and without considering the established science addressing the value of methadone treatment to maternal, fetal, and child health, and other key health and social welfare issues in the case.”
“As a matter of medicine and health care, it is simply nonsensical to regard methadone treatment as a form of child abuse,” said Robert Newman, MD, one of the experts represented in the brief. “Decades of research unequivocally demonstrate the benefits of treating a pregnant woman’s addiction to opioids with methadone, an extraordinarily well-studied medication whose benefits to the mother as well as the baby unquestionably outweigh the treatable and transitory side effects that are sometimes seen in the newborns.” He noted that “It is not recommended that women simply stop using opiates during pregnancy” and that “methadone and other related treatments are acknowledged by national and international governmental, academic, and clinic authorities to be the best choice for maternal, fetal, and child health, reducing risks of miscarriage, stillbirth, and premature birth.”
The bottom line: YN was in recovery. But unless the lower court’s ruling is reversed, New Jersey will effectively be the first state in the country to ban pregnant women from receiving methadone treatment, said Lynn Paltrow, Executive Director of National Advocates for Pregnant Women (NAPW) and co-counsel representing the experts. Not only do the DCPP’s actions “fly in the face of the recommendations of the World Health Organization and the U.S. government, but New Jersey itself, which, through collaborations between the New Jersey Department of Mental Health and Addiction Services and DCPP, provides methadone treatment to pregnant women and families in the child welfare system.”
The Legal Action Center signed on to the amicus brief and strongly supports the NAPW. “It is wrong, counterproductive, and dangerous to charge a pregnant woman with child abuse simply because she is in a methadone maintenance program,” Sally Friedman, legal director for the Legal Action Center, told AT Forum. “Singling out pregnant women receiving methadone maintenance treatment also can violate anti-discrimination laws.” Ms. Friedman added that child welfare authorities “need to act on the basis of medical evidence, not myths.” The best way for OTPs to make sure that their patients aren’t reported is to educate, added Ms. Friedman.
The mother, YN, is represented by Clara S. Licata and T. Gary Mitchell.
For the friend of the court brief filed January 9, go to http://advocatesforpregnantwomen.org/briefs/DYFS%20v.%20YN%20-%20Amended%20Supplemental%20Brief%20and%20Appendices.pdf
