Page:Aka v. Jefferson Hospital Association, Inc.pdf/24

650   Without getting into a discussion of whether creating liability for the wrongful death of a fetus, particularly in the medical negligence arena, creates "new obligations", I must observe that the source of legislative intent primarily relied upon by the majority in reversing our holding in Chatelain v. Kelly, 322 Ark. 517, 910 S.W.2d 215 (1995), derives not from a remedial source, but rather from the criminal code. The majority, in effect, bootstraps the legislative intent in the definition of "person" for the purposes of the homicide statutes to the definition of "person" in the wrongful death statute. Act 1273, as part of the criminal code, is not constitutionally susceptible to retroactive application under Article 2, section 17 of the Arkansas Constitution, or Article 1, section 10 of the United States Constitution. While I agree that this statute has some very limited relevance to our discussion of legislative intent in the wrongful death context, it simply provides no basis for a retroactive application in this case. Act 1273 of 1999 was not remedial legislation.

The majority opinion cites, but does not rely upon, a more compelling source of State policy for reversing our holding in Chatelain, and for applying our holding in this case retroactively. Amendment 68 to the Arkansas Constitution expresses the public policy of the State of Arkansas 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.

Amendment 68 was approved by the electorate in 1988 and was subsequently declared unconstitutional and unenforceable bythe federal courts in ''Little Rock Family Planning Servs. v. Dalton'', 860 F. Supp. 609 (E.D. Ark. 1994), aff'd, ''Little Rock Family Planning Sews. v. Dalton'', 60 F.3d 497 (8th Cir. 1995). Chatelain was decided shortly after the United States Court of Appeals for the Eighth Circuit affirmed the district court's order enjoining enforcement of Amendment 68. ''See Little Rock Family Planning Servs. v. Dalton, supra''. Ultimately, the Eighth Circuit and U.S. District Court decisions were, in relevant part, reversed by the United States Supreme Court. See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 116 S. Ct. 1063 (1996) (holding that Amendment 68, § 1 violated the Constitution but that the remainder of the Amendment was valid to the extent it did not violate federal law).