Page:Aka v. Jefferson Hospital Association, Inc.pdf/26

652   operates to give effect to a definition of person that includes at least a viable fetus. This effect of Amendment 68 has been in operation since its adoption by the voters, Drennen v. Bennet, 230 Ark. 330, 322 S.W.2d 585 (1959), well before the claims implicated by this case, and serves as a valid means of applying the State's policy in a retroactive manner as to these parties. 

 L. B, Justice, dissenting in part; concurring in part. I agree with the majority that the public policy of this state has changed so that viable fetuses are now considered persons for purposes of the wrongful-death statute. My disagreement with the majority is over when the change in public policy occurred and whether today's decision should be applied retroactively to cover only one case. I believe the public policy shift occurred in 2001 with the passage of Act 1265, which amends the wrongful-death statute so that it now applies to a person "or viable fetus." The majority agrees that today's decision should apply only to future cases, but then it carves out the Aka fetus as a sole exception. I cannot agree with that part of the opinion. I concur, however, in reversing the judgment respecting Mrs. Aka's death and sending that matter back for a new trial.

In 1995, in the case of Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995), this court held that a "person" under the wrongful-death statute only included those who had been born. We specifically said in Chatelain that neither our criminal law nor probate code had included viable fetuses as persons. We further said that Amendment 68, which protects "the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution" did not require us to consider fetuses as persons from the moment of conception for wrongful-death purposes.

Today, the majority overrules Chatelain, which I agree with, but then applies its decision retroactively to one lone case – the Aka case. In all other situations, today's decision will only apply prospectively, that is, to future cases. That aspect of today's decision has far reaching consequences. First, it undermines precedent and the stability of our common law. What the majority has done with