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Arkansas lawmaker tries to ban tattoo-shop practices

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Arkansas lawmaker tries to ban tattoo-shop practices 

By David Ramsey

Though Sen. Missy Irvin (R-Mountain View) is a staunch advocate of small government, she has sponsored a bill banning certain body modification practices, leading some artists and consumers to complain that the legislation would restrict their freedom to make adult choices.

The bill prohibits scarification and dermal implants. Scarification is a non-ink skin marking that forms scars for decorative purposes, while the bill defines dermal implants as "insertion of an object under the skin of a live human being for ornamentation or decoration." (The ban is on licensed professionals in the body-art industry, so plastic surgeons can breathe easy.)

The bill was first brought to the Senate Public Health, Welfare and Labor Committee at the end of last month. It was the day after the new "private option" deal for Medicaid expansion was announced and officials from the state Department of Human Services were there to speak to the committee about the new developments; some members, understandably, seemed less than eager to spend time on Irvin's bill. One senator openly rolled his eyes as Irvin and Health Department attorney Robert Brech testified.

Irvin's motivation, she said, was fear of staph infections — though neither Irvin nor Brech offered any evidence regarding the public health risk of the body modification procedures in the bill. They offered no data or analysis, nor did they provide any comparison with other legal activities.

Rather, Irvin and Brech employed an "ew, gross" strategy. They particularly harped on the gritty details of a "tongue-splitting" that was performed in Little Rock, even though that would not be impacted one way or the other by the legislation.

Irvin told the committee, "If you review the pictures of scarification, it's an interesting technique but very problematic." As for dermal implants, Irvin mentioned "spikes and things like that" and "peel[ing] back the skin." Committee members audibly groaned. At one point she compared scarification, a practice that some adults in the U.S. choose for themselves, to female genital mutilation in Africa.

Misty Forsberg — a licensed tattoo and piercing artist from Fort Smith — testified convincingly that the definitions in the bill were contradictory and vague and said that Irvin's descriptions of the practices were inaccurate. Forsberg said the bill failed to address the more intensive forms of implants the Health Department intended to target and, as written, the bill was so broad that it would ban navel piercings.

Forsberg said scarification, which is common in some cultures, had been a worldwide industry for 10 years and that it should be regulated, not banned, which would only send it to an unregulated black market.

"If it's passed you'll see professionals cease to do it," she said. "Professionals like myself won't break the law to do it. It will be left to untrained individuals underground ... a ban on it will only increase the danger of having untrained individuals perform it on the public and leaving that public with no safe way to pursue this art."

As for health risks, she testified that they are "equivalent in the depth and comparable in risk to that of a tattoo without ink. The result is the intentional application of scars for the purpose of decoration. The state's fear of high infection rates is unfounded, as the initial healing time is faster than even that of many basic body piercings."

Sen. Cecile Bledsoe (R-Rogers) asked whether the procedures should be considered invasive surgery. Brech responded that he thought tongue-splitting was invasive surgery, though the bill doesn't apply to tongue-splitting.

Sen. Stephanie Flowers (D-Pine Bluff) wanted to make sure that the ban wouldn't apply to branding, which is a practice followed by some African-American fraternities. She was told it does not, though branding is itself a form of scarification.

Finally, Sen. David Burnett (D-Osceola) used the question time to announce that tongue-splitting was "the grossest thing I've ever heard of." The bill passed by voice vote.

Forsberg and other body artists who oppose Irvin's bill are actually in favor of tougher regulation, safety requirements and training in their industry. In fact, despite her opposition to SB 387, Forsberg later testified in favor of a second body-modification bill from Irvin, SB 388, regarding regulation and professional standards.

Irvin and Health Department officials originally approached Forsberg and other industry experts for help. According to Forsberg, it became clear that they had relied exclusively on quick Google and YouTube searches, leading to sensational misinformation. "It doesn't seem like they bothered to continue anywhere past that on researching the topic," she said.

Forsberg and other body artists tried to offer suggestions on SB 387. She told the Timesthat there were certain types of implants that really are too dangerous to do in a tattoo shop but that Irvin had flubbed the definitions in the bill so badly that it both failed to address her attempted target and could be construed to ban almost any form of body art at all. She called it a "slippery slope that makes us very nervous." Irvin blew off these critiques.

"I clarified that with the senator when they were writing it because they approached me for help with it," she said. "Even after telling her what [scarification and dermal implants] actually were she chose to ignore that and present it as something different."

Irvin did not respond to repeated requests from the Times for comments.

Brech, however, did talk to the Times to explain the thinking behind the bill. He again brought up a detailed description of tongue-splitting, though he agreed that the legislation does not address that activity, which the Health Department believes is already illegal.

Brech said that based on discussions with infectious disease doctors, he was concerned that both scarification and implants could lead to "very severe infections."

"We can't [even] control infections 100 percent in hospitals in extremely sterile environments where everybody is trained," he said. He said that they had not yet identified a single case of infection from scarification or implants, and did not have any data or research on the public health impacts. However, "the potential for infection is there ... . You've got people who are not medically trained cutting into the skin."

Forsberg testified that the Health Department was exaggerating the risk of infection from scarification. Not so, Brech said. "Their point is that it's not any more dangerous than some piercings that might take weeks to heal," he said. "That's more of an argument that those piercings maybe ought to be banned as well — but we're not trying to do that."

Brech shrugged off Forsberg's fear that a prohibition could lead to more black-market procedures that would have a higher infection rate, saying, "You could make that argument with anything."

As for why the law bans some forms of scarification but not branding, he said, "The legislature made that determination in 2001. Branding is allowable. It's been done for years. We're not looking to change that. We're trying to limit more emerging things than what traditionally has been done. The implants and scarification are sort of emerging. There's not a lot of that that happens in Arkansas now."

Rep. Nate Bell (R-Mena), perhaps the most conservative member of the General Assembly, says he is resolved to try to stop the bill. "The bottom line is I don't think it's the proper role of government to tell people what they can and cannot do with their own bodies," he said in a recent phone interview.

When SB 387 hit the Senate floor, it again sailed through, though with a bit of resistance. Four Republicans voted no, on the same grounds articulated by Bell.

One of them was Sen. David Sanders (R-Little Rock). "I didn't think the bill was needed," he said. "What an individual chooses to do in terms of those types of modifications to one's body, that should be left to them."

The House Public Health, Welfare and Labor committee has scheduled a hearing on Irvin's bills March 21. One Republican on the committee, Rep. David Meeks (R-Conway), has publicly stated that he is leaning against it. On the other side of the aisle, Rep. Greg Leding (D-Fayetteville), the Democratic Majority Leader who serves on the committee, hasn't read the bill yet but said that he has "heard a lot of people on both sides of the aisle raise some very serious concerns," including the possibility that the law might prohibit some religious practices. Rep. Warwick Sabin (D-Little Rock), a liberal voice on the opposite end of the political spectrum as Bell, has publicly stated that he will vote against the bill.

Bell plans to speak against it in committee. "I certainly don't have any implantations or piercings or scarification," he said. "But as I look at it, fundamentally, that's an unreasonable encroachment on personal liberty."

Forsberg stressed that she did not think legislators were intentionally trying to attack folks interested in body modification, but that misinformation and fear had muddied the waters.

"A lot of people in the state, they see things like this and because they don't understand why we do it, it's scary," she said. "People don't like things outside of what's their norm. Because of the area that we live in, a lot of stuff that's normal, everyday activity to many of us in the body-modification industry is considered gross and distasteful. ... People's natural reaction is to try to be against something they don't understand."

COMMENT: Tattooist v. Tattoo: Separating the Service from the Constitutionally Protected Message


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