Cite as 344 Ark. 627 (2001)
this decision is to overrule the Chatelain decision after only six days of effectiveness. The Chatelain opinion was handed down on November 20, 1995. With the seventeen-day period for rehearing, that meant Chatelain became final on December 7, 1995, and the mandate issued. The unborn fetus in the Aka case was stillborn on December 13, 1995, which was six days later. The Chatelain case must hold the record in the history of jurisprudence as the case with the shortest life span. Then, there is the inherent unfairness of treating two cases with comparable facts completely differently within a six-day time frame. The result of all this is that legal stability is thrown out the window, and we are relegated to deciding fact situations on a case-by-case basis without any adherence to precedent. That flies in the face of the whole notion of the common law and stare decisis.
The majority's rationale for carving out the Aka case as the one exception is decidedly murky. In one place, the opinion reads: "Now, to be consistent with the current expression of legislative intent, we must depart from Chatelain." The opinion footnotes Act 1265 of 2001 in support of this statement. Another part of the opinion cites Amendment 68 and states: "By federal constitutional interpretation, the state's interest in protecting the life of a fetus begins at viability." The majority cites Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) and Roe v. Wade, 410 U.S. 113 (1973) for this proposition. In still another part of the decision, the majority states that the General Assembly passed Act 1273 of 1999 in response to Chatelain and that Act expands the definition of a "person" for homicide purposes to include "a living fetus of twelve (12) weeks or greater gestation."
Again, the burning question is when did the state's public policy on this issue change? The majority, however, presents us with four different events justifying a change in public policy, with each event occurring in a different year:
- Amendment 68, which was passed in 1988 and protects fetuses from conception.
- Amendment 68, as interpreted by Dalton v. Little Rock Family Planning Sews., 516 U.S. 474 (1996), which held that Amendment 68 is displaced only to the extent it conflicts with federal law.
- Act 1273 of 1999 which included fetuses of twelve weeks or greater gestation as persons for homicide purposes.
- Act 1265 of 2001, which adds viable fetuses as persons for wrongful-death actions.
