Page:Aka v. Jefferson Hospital Association, Inc.pdf/14

640   [3] Given this amended definition of "person," the legislature plainly affords protection to unborn viable fetuses, assuming injury or death occurred without the mother's consent to a lawful abortion or outside the "usual and customary standards of medical practice" or beyond "acts deemed necessary to save" the mother's life. The relevance of the legislature's response, by statutorily defining person in the criminal context to include a fetus, cannot be understated given our strong reliance in Chatelain upon Meadows. The Meadows decision was predicated upon the lack of legislative guidance in defining the term "person." As a result, this court was obliged to turn to the common-law definition of person, which did not include a viable fetus. Meadows, 291 Ark. at 107–108, 722 S.W.2d at 585. Act 1273 of 1999 is consistent with Amendment 68 to the Arkansas Constitution, and if there had been any doubt concerning the State's public policy on this subject, it is now laid to rest. We are no longer constrained by the common-law definition of person.

The people's passage of Amendment 68 in 1988 reflected the stated public policy of Arkansas. Amendment 68 declares that "[t]he policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution." Ark. Const. amend. 68, § 2 (emphasis added). We are mindful that the federal courts enjoined the enforcement of Amendment 68 and held it unconstitutional because its provision that no public funds will be used to pay for abortions except to save the life of the mother violated the 1994 Hyde Amendment. See Ark. Const. amend. 68, § 1; ''Little Rock Family Planning Servs. v. Dalton'', 860 F. Supp. 609 (E.D. Ark. 1994), aff'd, ''Little Rock Family Planning Servs. v. Dalton, 60 F.3d 497 (8th Cir. 1995) (holding that Amendment 68's prohibition of the use of public funds for abortions except to save the mother's life violated the federal Medicaid statute, as amended by the 1994 Hyde Amendment, and was invalid under the supremacy clause); but see Little Rock Family Planning Servs.'', 60 F.3d at 504–505 (B, J., concurring in part and dissenting in part).

However, the United States Supreme Court reversed the Eighth Circuit and held that Amendment 68 could be enjoined only to the extent that it imposed obligations inconsistent with Title XIX. See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476 (1996). Accordingly, the Supreme Court reversed the