Press Release: Pregnancy Justice, 50 Leading Medical, Public Health, and Child Welfare Organizations and Experts To Argue to NJ Supreme Court on Monday that Family Courts Should Insist on Science Not Stigma

September 7, 2012
CONTACT: Emma Ketteringham
212-255-9252 or 917-991-4943

50 Leading Medical, Public Health, and Child Welfare Organizations and Experts To Argue to NJ Supreme Court on Monday that Family Courts Should Insist on Science Not Stigma
Junk Science No Basis for Child Neglect and Abuse Finding

TRENTON, NJ (September 10, 2012): On September 10, 2012, at 10:00 a.m., the Supreme Court of New Jersey will hear argument from Lawrence S. Lustberg, Esq. of Gibbons P.C., who, with Pregnancy Justice, represents a group of fifty national and international medical, public health, and child welfare organizations, experts, and advocates challenging lower court decisions that radically expand the scope of the state’s civil child neglect and abuse laws to apply to a pregnant woman in relation to the fetus she carries and sustains. These experts maintain that the finding of the lower courts rests on a number of invalid assumptions about drug use rather than on reliable science.

In this case, New Jersey Division of Youth and Family Services (DYFS) v. A.L., a woman identified as A.L. gave birth to a healthy baby in September of 2007. DYFS argued that positive drug screens for cocaine on A.L. and her newborn alone -- without any evidence of harm and without any science at all finding that positive drug screens predict harm -- were a sufficient basis to find that A.L. had neglected her child. A lower court and the Appellate Division agreed, not only finding neglect in this case, but also declaring that a New Jersey’s neglect law could be applied in the context of pregnancy. On October 26, 2011, the New Jersey Supreme Court agreed to hear the case and oral argument is scheduled for Monday, September 10, 2012 at 10:00 am at the Richard J. Hughes Justice Complex in Trenton, NJ.

In their brief filed on January 9, 2012, amici, including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry, focus on the New Jersey Supreme Court’s commitment to the use of reliable scientific evidence in judicial decision-making. Amici 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.

Lawrence S. Lustberg, Esq. of Gibbons P.C., co-counsel representing amici, explains 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. This case should be no exception.” He points out, “significantly, the State’s brief relies on long-discredited, factually incorrect statements about drug-use in pregnancy and effectively concedes that the question at the center of this case requires consideration of scientific and social science evidence.”

Amici also note that DYFS presented no evidence that the child had suffered any actual injury at birth or at any time after birth, and presented no witnesses with expertise regarding the effects of prenatal exposure to cocaine, what drug test results mean, or the association between a pregnant woman’s drug use and a likelihood of abuse or neglect of a child once born. Nor did DYFS present, or the lower courts consider, the vast body of medical and social science research on these questions.

“If this were a case about the harm caused by a particular drug in any other context the judiciary would require reliable scientific evidence. Pregnant women and children who are caught up in the child welfare system and who are disproportionately low income and of color, no less than other people or corporations, deserve decisions that are grounded in evidence-based research,” said Emma S. Ketteringham, co-counsel in the case and Director of Legal Advocacy for amici Pregnancy Justice. Ms. Ketteringham added, “Pregnant Women and families should not be deprived of their fundamental rights – including the right to family relationships – based on junk science, or no science at all.”

Expert amici explained to the court that medical research makes clear that numerous substances, conditions, and circumstances raise similar or greater risks to fetuses than prenatal exposure to cocaine. While amici were careful to note that they were not suggesting that prenatal exposure to criminalized drugs is benign, they emphasized that current scientific evidence simply does not support judicially rewriting state law to allow for a per se finding of abuse or neglect based solely on evidence of a woman’s use of cocaine, or other criminalized or non-criminalized drug during pregnancy.

Amici also noted that there is no research to support the idea that a positive drug test demonstrates harm, risk of harm, or a likelihood of neglect or abuse. They emphasized, however, that there is research finding that threats of punishment, including the loss of child custody, deter pregnant women from care, undermining rather than advancing maternal, fetal, and child health.

Wendy Chavkin, MD, MPH, a physician and researcher who has written extensively about the issue of drug use and pregnancy, observed: “These issues have become caught up in other political battles. It is critical that state agencies, like DYFS, and the court base their decision on scientific evidence, not on misinformation and stereotype.”

Ms. A.L. is represented by Clara Licata of the New Jersey Office of Parental Representation. An amicus brief supporting Ms. A.L.’s position was also filed on behalf of The Legal Services of New Jersey.

Amici organizations include: American College of Obstetricians and Gynecologists, Addiction Science Research and Education Center, American Academy of Addiction Psychiatry, American Society of Addiction Medicine, International Centre on Science in Drug Policy, International Doctors for Healthy Drug Policies, National Perinatal Association, National Coalition for Child Protection Reform, Child Welfare Organizing Project, HealthRight International (Former Doctors of the World –USA), and National Women’s Health Network. This amicus brief – including a full list of the amici – is available here on the Pregnancy Justice’s website:

It will be possible to watch the oral argument online at the New Jersey Supreme Court WebCast page: