Source Associated Press; May 11, 2001
Little Rock, AR -- The Arkansas state Supreme Court ruled that an unborn child is a person in a wrongful-death lawsuit brought by a man whose wife and unborn child died during childbirth.
In reversing a lower court on Thursday, the Supreme Court cited a 1999 law that changed the state's fetal protection law, similar to the Unborn Victims of Violence Act currently in Congress and laws in more than twenty five states.
The case stemmed from the Dec. 13, 1995, death of Evangeline Aka and her unborn son about 30 hours after she was admitted to the hospital so labor could be induced.
Aka's husband, Philip, claimed the defendants were medically negligent in unnecessarily inducing his wife's labor, failing to discontinue the procedure, failing to perform a caesarean section, failing to resuscitate his wife or the unborn baby and failing to obtain informed consent.
``Given this amended definition of 'person,' the Legislature plainly affords protection to unborn viable fetuses,'' Chief Justice W.H. ``Dub'' Arnold wrote for the court. The decision overturns a decision where a circuit judge ruled in early 1999 against Aka's claims, citing a Supreme Court ruling that an unborn child was not a person in wrongful-death actions.
Later that year, the Arkansas legislature approved a law specifying that an unborn child could be considered a person for some purposes in criminal law -- such as when a woman is assault and the unborn child is killed or injured.
``The relevance of the Legislature's response, by statutorily defining person in the criminal context to include a fetus, cannot be understated,'' Arnold wrote. ``If there had been any doubt concerning the State's public policy on this subject, it is now laid to rest." Because of the 1999 law, ``we are no longer constrained by the common-law definition of a person,'' Arnold wrote.
In a dissenting opinion, Justice Robert L. Brown said he agreed with the lower court ruling that viable unborn children are not considered persons for purposes of wrongful-death cases.
Brown said he believed the public policy shift didn't occur until this year, with the passage of another law specifically amending the wrongful-death statute to include a viable fetus in the definition of a person. The act was approved April 4 and won't go into effect until Aug. 14.
In upholding the personhood of the unborn child, Justice Arnold also cited a ballot measure passed in Arkansas in 1988. Arnold writes "The peoples' passage of Amendment 68 in 1988 reflected the stated public policy of Arkansas. Amendment 68 declares that '[t]he policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution' .... the import of Amendment 68 remains a compelling expression of Arkansas's public policy."
The decision could help in arguing for the Unborn Victims of Violence Act. ``It is clear that two lives were lost in the Arkansas case. Both of those lives deserve to be protected with the full force of the law,'' said Greg Crist, a spokesman for Majority Leader Richard K. Armey (R-Tex.), a key supporter of the UVVA bill.
The full text of the decision can be found at
http//courts.state.ar.us/opinions/2001a/20010510/99-1366.html