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Ark. Supreme Court Overturns Ruling Criminalizing Woman for Drug Use During Pregnancy

October 13, 2015 — The Arkansas Supreme Court on Thursday overturned a conviction in a case in which a woman had been given a 20-year prison sentence after she delivered an infant who had methamphetamine in his system, AP/WREG reports (Taylor, AP/WREG, 10/8).

Case Background

Arkansas law makes it a crime to "administer or cause to be ingested, inhaled or otherwise introduced" a controlled substance into another individual in a way other than it has been prescribed (Willems, Arkansas Democrat-Gazette, 10/9). Melissa McCann-Arms was convicted under the state law after she and her infant tested positive for methamphetamine after she gave birth in November 2012. A lower state appeals court upheld the conviction. In that ruling, the court said even if the statute does not apply to fetuses, the infant received methamphetamine in the time between delivery and when the umbilical cord was cut.

Ruling Details

The latest ruling, by the Arkansas Supreme Court, reverses the conviction and dismisses the case, AP/WREG reports. The court held there was no evidence that McCann-Arms had introduced methamphetamine into her infant's system by having the infant inhale the drug or ingest it (AP/WREG, 10/8). Further, the court said there was no scientific or medical evidence that McCann-Arms transferred the drug to the infant via the umbilical cord after delivery (Arkansas Democrat-Gazette, 10/9).

"The jury would thus have been forced to speculate that Arms was 'otherwise introducing' the drug into the child at that point," the court wrote, adding, "When a jury reaches its conclusion by resorting to speculation or conjecture, the verdict is not supported by substantial evidence."

In addition, the court noted that Arkansas law does not criminalize bodily processes that passively result in a substance transferring from a woman's system into the fetus' system. "The courts cannot, through construction of a statute, create a criminal offense that is not in express terms created by the Legislature," the court ruled (AP/WREG, 10/8).

Concurring Opinion

Chief Justice Howard Brill wrote in a concurring opinion that for the conviction to stand, the law would need to explicitly include the term "unborn child," according to the Arkansas Democrat-Gazette.

Brill further noted, "No one would dispute, for example, that the statute prohibits a parent from feeding a child marijuana-laced brownies," adding, "Likewise, no one would reasonably contend that a nursing mother suffering from nasal congestion who ingests a controlled substance such as ... pseudoephedrine should be prosecuted if the substance is transferred into her milk and absorbed by her infant."

Moreover, although an amendment to the Arkansas Constitution says it is state policy "to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution," the amendment is not "self-executing" and it is up to the state Legislature to apply the amendment to its legislation, Brill said. He also noted that groups advocating on behalf of McCann-Arms -- including medical and social science experts, as well as women's rights groups -- said a conviction could discourage pregnant women with substance use issues from seeking medical treatment.

Attorney Says Ruling Should Help Other Women Convicted Under Law

Farah Diaz-Tello, McCann-Arms' attorney during the appeal, said, "The Legislature has had ample opportunities to consider this issue and has declined to make a law that criminalizes women for giving birth after using a controlled substance."

She added, "This ruling should give (other women) grounds for postconviction relief because this ruling acknowledges that the law was not intended to be used that way. What [those women] did was not a crime." According to the Democrat-Gazette, two other women in the same county have been convicted under the same law and given 20-year prison sentences (Arkansas Democrat-Gazette, 10/9).