On October 8, 2015, the Arkansas Supreme Court delivered an opinion reversing the conviction and dismissing all charges against a woman who on multiple occasions throughout her pregnancy subjected her child to codeine, amphetamine, and/or methamphetamine. Unfortunately, this was the only decision the Court could come to. Arkansas law makes it a crime "for any person to administer or cause to be ingested, inhaled, or otherwise introduced into the human body of another person a controlled substance" unless prescribed by a physician for a legitimate medical purpose (Ark. Code Ann. 5-13-210). The decisive factor in this case is that under Arkansas law, the definition of person includes unborn children only in terms of a homicide (Ark. Code Ann. 5-1-102(13)(B)(i)(a)). Tempting as it may be to call this case one regarding the rights of the unborn, that is too easy. This case is a case regarding the rights of the born.
The case is State of Arkansas v. Arms, 2015 Ark. 364 (2015). The Court found that the evidence only suggested that the Defendant could have delivered a drug to her child by "otherwise introduc[ing] it" since there was no evidence that the child ingested or inhaled it. It also found no evidence that the Defendant otherwise introduced drugs to her child after the baby was born. While there was a narrow window of time between birth and the severing of the umbilical cord in which the Defendant could have still been transferring drugs to her now born child, there was no evidence to support that speculation. On these grounds alone, the Court had no choice but to reverse the conviction and dismiss the charges.
However, as courts sometimes do (in spite of their own policy against making decisions on appeal that litigants have not raised), the Arkansas Supreme Court went too far and provided additional rationale for its decision beyond the scope of the appeal - an issue soundly addressed in Justice Wood's concurring opinion. The majority opinion ruled that even if the law were changed to include the unborn, who will inevitably suffer harm after birth as a result of the Defendant's drug use before birth, the law that criminalizes introducing drugs into the body of another "cannot be construed to include such a passive process" as the biochemical exchange between a pregnant woman and her unborn child.
That is an incredibly dangerous piece of legal reasoning with far reaching moral implications. The idea is that causing someone to ingest or inhale is an active process that the statute specifically calls out, so the general phrase "otherwise introduce" must also be an active process. At what point does ingesting, inhaling, or as in this case injecting anything become a passive process? The point at which the ingested chemicals biologically pass from mother to child by a natural process? Surely we know by now that much of what the mother actively ingests, inhales, or injects will naturally pass to the unborn child, or are we arguing that this mother's right to actively break the law trumps this child's right to be born without a drug addiction? Fortunately, the majority opinion does put a face on this victimized baby, who "did not cry, even after being stimulated. He was flaccid and limp and had a facial droop on one side of his face...suffering withdrawal from methamphetamine use."
The state of the law as a result of this case is absurd. This is not a matter of the rights of the unborn; it is a matter of the rights of the born. Not only can we actively kill the unborn, we can actively harm them in utero such that they suffer after birth. In other words, we value life so little that not only can we arbitrarily terminate it before birth, we can addict it to dangerous and deleterious chemicals before birth that it will suffer through after birth.
This blog is about faith meeting law. Faith is belief in action (see Hebrews 11), so two questions remain: what do we believe? and what should we do? Proverbs 31:8-9 say, "open your mouth for the mute, for the rights of all who are destitute. Open your mouth, judge righteously, defend the rights of the poor and needy." In his rebuke against unjust judgments, Asaph said in Psalm 82:3-4 that his readers should "give justice to the weak and the fatherless; maintain the right of the afflicted and the destitute. Rescue the weak and the needy; deliver them from the hand of the wicked." In His plea for Israel to repent after having said "I've had enough," God said through Isaiah in Isaiah 1:17, "learn to do good; seek justice, correct oppression, bring justice to the fatherless, plead the widow's cause. Infants certainly fall within the scope of these verses. The facts are simple - defenseless, destitute, oppressed, poor, needy, afflicted, weak infants can be born addicted to a controlled substance and the State, which speaks first and foremost by the laws it passes and enforces, says that this state of affairs is okay. Yet these infants who cannot speak cannot possibly be said to desire their addictions. We must be their voice, but how?
Chief Justice Brill noted in his concurring opinion that the Arkansas General Assembly considered this issue in House Bill 1376 of 2015. The obvious course of action is to revisit that piece of legislation as soon as possible. Furthermore, we need to be very cautious of legislation regarding the legalization of recreational drug use. Even if those drugs do not readily pass from mother to unborn child, the potential for the gateway effect to force more people into harder drug use while pregnant only raises the specter of more children like this to be born with chemical dependencies. Ask your representatives and senators to protect the born.
Subscribe and you'll receive one weekly email only if I write something. Your email address is private and I will not share it with anyone.
I follow Christ. I have a beautiful wife Megan and three wonderful children, Harrisen, Rebekah, and Carter. I have an M.Div. from Liberty Baptist Theological Seminary, am licensed to practice law in several state and federal courts, and live in Rogers, Arkansas. I write a blog and produce a podcast. And I do it all that others may know Christ.