Court ruling in meth case starts push to alter law

Sides disagree on whether to include unborn children

The Arkansas Court of Appeals decision to uphold the conviction and imprisonment of a De Queen woman who used methamphetamine while pregnant has some wanting to clarify the law she was convicted of — either to specifically include or exclude unborn children.

Sen. Missy Irvin, R-Mountain View, said “all protections need to be awarded” to unborn children under the statute, and she’d look into adding language to include this type of offense in the law.

Holly Dickson, legal director of the American Civil Liberties Union of Arkansas, said the Court of Appeals decision and any subsequent addition to the statute to include unborn children could discourage women from seeking access to health care out of fear of criminal charges.

The opinion, issued Wednesday, supports the 20-year sentence given to Melissa McCann-Arms, 38, who was charged with introducing a controlled substance into the body of another person after her newborn son tested positive for methamphetamine. According to court records, McCann-Arms acted “very erratic and out of control” when she arrived at Mena Regional Health System to give birth in November 2012, and she admitted to using methamphetamine the day before her son was born.

A Polk County Circuit Court jury convicted Mc- Cann-Arms in January 2014, and she’s currently imprisoned at the Wrightsville Unit.

In an appeal, Randy Rainwater, McCann-Arms’ attorney, said there is no reference to unborn children in the statute and that Arkansas law does not define an unborn child as a “person” except in cases of homicide.

The Court of Appeals opinion states that “even assuming” the statute does not apply to an unborn child, the conviction was not reversed because McCann-Arms’ fluids continued to flow through the umbilical cord to her son for a period of time after he was born.

Michael Flannery, associate dean at the University of Arkansas at Little Rock’s William H. Bowen School of Law, said the ruling was unusual. The court should not apply a criminal statute to a defendant if the state Legislature’s intention is unclear, he said.

“There’s not a lot of jurisdictions that rule this way,” Flannery said. “They may apply other provisions like abuse or neglect, but that’s not what they’re applying here. It’s an interesting outcome. It’s the result of unclear drafting.”

In a concurring opinion, Judge Phillip Whiteaker addressed the language in the law, saying he did not believe the Legislature “intended for the statute to be utilized in this manner.” He called on the Arkansas General Assembly to amend the statute to indicate whether it applies

to unborn children.

Irvin said she’d “make sure the language is clarified.”

“I think it’s something we need to listen to,” she said. “It really to me is a crime. I understand it’s a tricky situation, but there are consequences.”

James “Andy” Riner, the prosecuting attorney in the case against McCann-Arms, said he was “delighted” with the Court of Appeals opinion, which adopted the prosecution’s theory of the case.

He said the Legislature could “very easily fix” the law by adding language from the state’s homicide statutes, which states “person” includes an “unborn child in utero at any stage of development.”

During the 80th General Assembly in 1995, Sen. James Scott, D-Warren, introduced a failed bill that would have amended the statute to apply it to “a viable fetus,” according to legislative records.

Dickson said legislators who don’t think the statute should be applied as it was in the McCann-Arms case should “come in and make a fix.”

Associations such as the American Medical Association and American Academy of Pediatrics have “long opposed” laws that criminalize drug addiction in pregnant women, she said.

“To foster healthy moms and healthy babies, we need to ensure pregnant women have access to prenatal care, support and treatment to overcome their addiction,” Dickson said in an email. “Laws such as this criminalize the decision to continue a pregnancy as well as can drive them away from health care and addiction treatment.”

Flannery said because such an application of the law could lead to women seeking abortions, the intention of the statute needs to be questioned.

“There’s a lot of literature out about this subject, and the biggest point that’s usually made is if the law were to apply this way it leads to the obvious dilemma of a woman who uses drugs while pregnant and knows she could be charged with a crime so she does have a right to terminate the pregnancy,” Flannery said. “Most legislatures don’t draft statutes to lead to that conclusion.”