Page:Aka v. Jefferson Hospital Association, Inc.pdf/28

654   The majority's handling of this critically important social, cultural, and moral issue is muddled. For example, according to the majority, Roe v. Wade has effectively limited the application of Amendment 68 to viable fetuses. But then the majority also relies on Act 1273 of 1999 which extends the protection for homicide cases to fetuses of twelve weeks gestation, which is before viability. Also, if the state's public policy on viable fetuses changed as early as 1988 or 1996 or 1999, as the majority apparently believes, why does the majority apply today's decision only to future cases with the sole exception of the Aka case? The majority's reasoning is inconsistent and extremely hard to justify. A decision of this magnitude requires clarity and direction and not a patchwork quilt woven from disparate statutes, constitutional provisions, and Supreme Court decisions.

In sum, while I agree that it is appropriate to overturn Chatelain, I cannot condone applying today's decision retroactively to cover only one fetus case. None of the cases cited by the majority permits the overruling of a case earlier than the date that the legislative act that changed the State's public policy became effective. Here, the wrongful-death statute was not changed until Act 1265 of 2001. The majority points to Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), but that case did not turn on a change in the General Assembly's statement of public policy. Rather, in Parish, we concluded that the previous caselaw where we granted municipalities immunity from tort liability for the negligence of their employees was patently unjust. We overturned our previous caselaw. Moreover, in Parish, the General Assembly had refrained from changing the law, whereas in the case before us, the General Assembly has acted, and that is the public policy shift that the majority opinion relies on.

In the dramshop cases, this court overturned prior caselaw based on the fact that the General Assembly had altered the public policy of this state. See Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (General Assembly has established high duty of care for holders of alcohol licenses not to sell to intoxicated persons); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (General Assembly has determined it is the public policy of the state to protect minors from adverse consequences of alcohol consumption by making it a felony to sell alcohol to minors for monetary gain). But we did not overturn our caselaw for any case that occurred before the General Assembly altered the public policy of the state.