Did you know that forcing a woman to have a baby and give it up for adoption isn't human trafficking? Not yet anyway. A lot of people have tried a number of ways to make the practice of coercing a woman into having and adopting away her child fit neatly within existing human trafficking statutes. It just doesn't. The human trafficking statutes were designed to stop modern day slavery and the sex trade. You really have to stretch the current legal definition of human trafficking to make forcing an adoption illegal.
That's about to change. HB 1488 in Arkansas extends the definition of human trafficking to recruiting, enticing, soliciting, isolating, harboring, transporting, providing, maintaining, or obtaining a pregnant woman for the purpose of causing her to to place the unborn baby up for adoption the use of or threatened force, or benefiting financially from any of those things.
Arkansas - tell your representatives and senators to support HB 1488!
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.
In recent headlines, states across the country are passing state versions of the federal Religious Freedom Restoration Act. In my home state, the Arkansas General Assembly is getting slammed for passing similar legislation, and our governor is under immense pressure to veto the bill. The primary opposition is coming from the GLTB community. I support HB 1228 because it protects religious freedom. However, since it fails to strike a proper balance between protecting Christians' fundamental need to avoid being an accessory to sin and otherwise treating all people as made in the image of God and therefore worthy of love, acceptance, and respect, I do not believe Christians should let this law be the standard by which they treat others. Scripture must set that standard.
You can read HB 1228 here. In a nutshell, it protects individuals, businesses, and religious institutions in their right to practice or observe their religion, including "the ability to act or refuse to act in a manner substantially motivated by a person's sincerely held religious beliefs" from any state action. The bill defines state action as "the implementation or application of any law, including without limitation state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by law in this state." In other words, no one in government may pass a law or rule which would require a religious person to act or refuse to act in violation of his or her sincerely held religious belief. The only exception was set forth by the U.S. Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972), in that the government can prohibit such action if that prohibition is essential to further a compelling governmental interest and is the least restrictive means of furthering that governmental interest.
The chief gripe against this proposed statute is that it would allow Christian business owners to refuse to sell goods or services to anyone who is a practicing homosexual because it violates their sincerely held religious beliefs. Conservative evangelicals have long held that Scripture's teachings on homosexuality clearly place the practice as contrary to the will, holiness, and perfection of God, and I hold to that position as well. However, I do not believe the Bible condones refusing to do business with those who do not follow God's requirements in most circumstances (emphasis on the word most).
In short, Christians must treat people as they would want to be treated while refusing to be an accessory to sin. In some situations, the determination of how the Christian should act is simple. Christian grocery store owners and managers should not refuse to sell groceries to a practicing homosexual, even though this bill would allow it. Doing so is by no means making the store owner or manager an accessory to sin. Likewise, Christian restaurant owners should not refuse to sell their food to a practicing homosexual, nor should Christian barbers and hair stylists refuse to cut a practicing homosexual's hair. On the other side of that coin, however, Christian bakers must absolutely have the right to refuse to bake a cake for a homosexual wedding because doing so would make that baker an accessory to sin. Christian wedding photographers should likewise have the right to refuse their services to a same-sex couple. Christian churches should have the freedom to only perform wedding rituals for couples that meet the definition of marriage provided by Scripture.
Although this standard is painted as a bright red line, that line is not necessarily as clear as one might think. Should Christian lawyers refuse to draft a will that leaves the property of one person in a same-sex couple to the other? Should Christian accountants refuse to prepare and file a joint tax return for a same-sex couple? Should a Christian landlord decline to lease a house or apartment to a same-sex couple? These are the questions that Christian ethicists, theologians, and pastors must debate and the answer to which must ultimately be left to the individual conscience of the Christian who is faced with the situation.
In each instance, there will be varying opinions. Some Christian lawyers may feel that writing a will for a same-sex couple looks too much like a family affair and conclude that he or she would be an accessory to sin by writing it. Christian accountants may feel similarly about preparing and filing a joint tax return for a same-sex couple. Others may conclude that whether two people of the same gender are having sex has little to do with what happens to their property when they die or the manner in which they file their taxes.
But in either case, it is the individual's conscience before a holy God that must make the final decision. Not the government. Not the church. The individual. If a person cannot stand confident in their decisions as pleasing to God or ashamed in their decisions as displeasing to God, that person cannot practice religion. It is from interference in these moral decisions that society at large must be protected. This is why I support HB 1228.
I follow Christ. I have a beautiful wife Megan and three wonderful children, Harrisen, Rebekah, and Carter. I am a candidate for a Ph.D. in ethics from Midwestern Baptist Theological Seminary, have an M.Div. from Liberty Baptist Theological Seminary and a JD from the University of Arkansas, 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.