The New Jersey Supreme Court Wednesday ruled unanimously that the state's child protection laws do not give child protective services jurisdiction over pregnant women and that drug use during pregnancy does not by itself establish abuse or neglect. In the ruling, the court also acknowledged concerns articulated by leading medical and public health organizations that applying child protection laws to pregnant women can be detrimental to the health of the mother and the fetus.

[image:1 align:left]The ruling came in New Jersey Division of Youth & Family Services v. A.L. In that case, the mother -- "A.L." -- gave birth to a healthy baby in September 2007, but a drug screening of A.L. and her baby came back positive for cocaine. The state Division of Child Protection and Permanency argued that those positive drug screens were sufficient evidence of harm or potential harm to declare that A.L. had neglected her fetus.

A.L. challenged that finding, but lost in district court. She also lost in appellate court, where the judges not only found neglect, but also declared that the state's child neglect law could be applied to fetuses in utero. In its ruling Wednesday, the state's highest court disagreed.

"On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion," the court held. "The notation does not reveal the severity or extent of the mother’s substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

The Supreme Court also chided the lower courts for reaching conclusions not based on facts. Noting "the fact-sensitive nature of abuse and neglect cases," it said the Division -- not a judge -- must prove its case using qualified scientific and medical evidence. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm," it said.

The maternal rights group National Advocates for Pregnant Women and attorney Lawrence Lustberg took up the case during the appeal to the Supreme Court, representing a group of 50 national and international medical, public health, and child welfare organizations, experts, and advocates including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry.

In briefs to the court in the case, those groups argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

"We are so pleased that the New Jersey Supreme Court, consistent with its long tradition, carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy," said Lustberg. "The court recognized, in effect, that drug tests cannot predict parenting ability and acknowledged amici's concerns that expansion of the state's child welfare law to the context of pregnancy would be likely to disproportionately harm low income and minority communities."

"It is extremely important that the New Jersey Supreme court today recognized that pregnant women, children and families should not be deprived of their fundamental rights -- including the right to family relationships -- based on presumptions that are medically baseless," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

State officials have declined to comment on the ruling.