Robert L. Brown

“ 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. ”

“ I would apply today's decision only from the date the General Assembly amended the wrongful death statute to include viable fetuses. That legislation (Act 1265) was approved on April 4, 2001, without an Emergency Clause and becomes effective ninety days after the General Assembly adjourned. To overturn Chatelain for one case for a period before the public policy of this state changed is a unique decision. There is no case where this court has previously done so. Certainly, the majority opinion cites us to none. ”

“ 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." ”