# Aka v. Jefferson Hospital Association, Inc./Concurrence Imber

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Imber
* Concurrence/Dissent Brown
​ ANNABELLE CLINTON IMBER, Justice, concurring. I concur with the result reached by the majority in this matter. However, I do not agree with the analysis in Part I of the majority opinion.
The majority correctly suggests that consistency should be the benchmark when this court deals with legislative intent; however, the opinion falls short of its goal in its misplaced reliance on the amended definition of person in the homicide statutes at Ark. Code Ann. § 5-1-102 (Supp. 1999). This statute provides no basis for a retroactive application of a broadened defmition of personhood to the instant case.
Arkansas Code Annotated § 5-1-102 was passed as Act 1273 of 1999, three years after the events preceding the death of Baby Boy Aka. Legislative enactments are typically deemed to be prospective in application barring an express statement of a retroactive effect. Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). Act 1273 contained no such provision enabling retroactive application. Ark. Code Ann. § 5-1-102 (Supp. 1999).
The majority opinion cites Bean v. Office of Child Support Enfcm't, 340 Ark. 286, 9 S.W.3d 520 (2000), for the proposition that the strict rule of construction against retroactive operation of a statute does not necessarily control in the case of a remedial statute, providing that the law does not interfere with vested rights or "create new obligations." Id. at 297.
​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).
​Just as the majority does in this case, the Chatelain court made passing reference to Amendment 68 before concluding that "Whe General Assembly is particularly suited to making this policy decision," Chatelain, 322 at 525, 910 S.W.2d at 219. The court then expressed its reluctance "to create an inconsistency in the laws of this State by holding person includes viable fetus for the purposes of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate." Id.
The decision in Chatelain might very well have been different had Amendment 68 been enforceable and operative as a constitutional expression of State policy at the time. This court recognized in Unborn Child Amend. Comm. v. Ward, 318 Ark. 165, 883 S.W.2d 817 (1994), that, "until such time as the federal court's decision is reversed by the appropriate appellate court, the permanent injunction issued by the federal district court will be binding upon the State of Arkansas and its instrumentalities. . . ." Id. at 167, 883 S.W.2d at 818. In any event, for the purposes of our decision today, as well as the retroactive application of our holding, it is irrelevant that Amendment 68 had been declared unconstitutional and unenforceable by the federal courts at the time of the Chatelain decision. The United States Supreme Court decision in Dalton, supra, effectively erased the earlier decisions in the lower federal courts.
   The view has been taken that if the decision that a statute is unconstitutional is subsequently reversed or overruled, the statute will ordinarily be treated as valid and effective from the date of its enactment, or from its first effective date, and does not require reenactment by the legislature in order to restore its operative force
See 16 C.J.S. Constitutional Law § 108. In Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), the United States Supreme Court said, "'when this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule'" (quoting Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993)); see also, Wilkerson v. Rahrer, 140 U.S. 545, 11 S. Ct. 865 (1891); State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So. 2d 804 (1935).
Constitutional amendments are to be construed liberally to accomplish their purpose. Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992); thus, in this case, the purpose of Amendment 68 to protect fetal life up to the extent permitted by federal law ​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.
* ↑ For the purposes of the homicide statutes, Ark. Code Ann. §§ 5-10-101 – 5-10-105, the definition of "person" includes "an unborn child in utero at any stage of development" and "an 'unborn child' means a living fetus of twelve (12) weeks or greater gestation." Ark. Code Ann. § 5-10-102(13)(B)(i). This definition does little to support the majoritys decision that the legislature intended personhood to begin at viability.
* ↑ The district court permanently enjoined the enforcement of Amendment 68 in "its entirety," and on July 27, 1994, entered an additional order stating, "Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void, and of no effect."
* ↑ See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (upholding Roe v. Wade, 410 U.S. 113 (1973), in three parts: (1) "recognition of a womans right to have an abortion before viability and to obtain it without undue interference from the state"; (2) "a confirmation of the States power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the womans life or health"; and (3) "the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child").