Arkansas Supreme Court Declares Unborn Babies "Persons"

By Liz Townsend

Unborn babies in Arkansas can now be treated as legal "persons" in wrongful-death lawsuits, the state Supreme Court ruled May 10. The decision came in a case in which a mother and her full-term unborn baby died during delivery, but lower courts refused to allow the baby to be considered as the second victim of alleged malpractice.

"It's the best decision we've had from this court on a pro-life issue," Rose Mimms, executive director of Arkansas Right to Life, told NRL News.

"The court acknowledged that the unborn are persons and can be considered in civil lawsuits." Arkansas Right to Life filed a friend-of-the-court brief in the case.

The Supreme Court's 4-3 ruling was based in part on a 1999 state fetal homicide law that allowed prosecutors to charge those responsible for the death of an unborn child with criminal homicide. The court also cited a bill passed by the Arkansas legislature April 4, 2001, that extends "personhood" to unborn babies in civil cases. The new law is scheduled to go into effect August 14.

"The legislature plainly afforded protection to unborn viable fetuses," wrote Chief Justice W. H. Arnold, "assuming that injury or death occurred without the mother's consent to a lawful abortion or outside the 'usual and customary standards of medical practice' or beyond 'acts deemed necessary to save' the mother's life." The 1999 Arkansas law extended criminal law protection to unborn children after 12 weeks of pregnancy.

On April 26, the U.S. House of Representatives passed the Unborn Victims of Violence Act (UVVA), which would recognize unborn children as victims during the entire period in which they are carried in the womb. However, the federal bill would apply only to unborn children injured or killed during the commission of federal crimes of violence, such as terrorist bombings and crimes on military bases. The federal bill does not apply to civil cases. Commenting on the Arkansas Supreme Court decision to Reuters Health, Greg Crist, a spokesman for UVVA supporter House Majority Leader Dick Armey (R-Tx.), said, "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."

Evangeline Aka died along with her unborn baby boy on December 13, 1995. Her husband filed the wrongful-death lawsuit.

According to the Supreme Court decision, Philip Aka accused the doctors at Jefferson Regional Medical Center with "medical negligence in unnecessarily inducing his wife's labor, failing to discontinue the induction, failing to perform a caesarean section, failing to resuscitate her or the unborn baby, and failing to obtain informed consent." The Supreme Court decision describes the events leading up to the deaths of mother and baby as a tale of errors and lack of supervision of residents and nurses.

Mrs. Aka went to the medical center on the evening of December 11. Her labor was induced using drugs.

Twenty-seven hours later, when her labor had not progressed, a nurse who testified that no obstetrical physician had examined Mrs. Aka during that time called a physician at home and was told to prepare for a Caesarean section. However, the physician subsequently canceled the order for the surgery and told residents to manually rupture the amniotic sac. Two residents tried and failed to break the membranes. Soon after, Mrs. Aka complained of "acute shortness of breath" and residents determined she was "going into respiratory failure," according to the decision. An obstetrical physician eventually came tothe hospital, but the baby was still not delivered. Mrs. Aka and the baby boy were declared dead at 1:15 a.m. on December 13. According to the autopsy, the mother died of "amniotic fluid embolism." Forensic pathologist Frank Peretti described the baby asa "well-developed, well-nourished . . . full term male infant" weighing eight pounds, 15 ounces, according to the Supreme Court decision. During the January 28-February 16, 1999, jury trial, the judge dismissed charges relating to the death of Baby Boy Aka, citing a 1995 state Supreme Court decision that held an unborn baby could not be considered a "person." The jury ruled in favor of the defendants. With the Supreme Court's decision, the case has been returned to the Jefferson County Circuit Court, the original trial court, for "further action consistent with this opinion," the Arkansas Democrat-Gazette reported.