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Crosby v. Glasscock Trucking Co.5/22/2000
nity because of the happenstance that the unborn child had not yet reached viability at the time of death.").
I realize that, if adopted, my position would be examined for its implications beyond the context of the wrongful death statute. For instance, it may be argued that my approach to the interpretation of "person" under the wrongful death statute could erode a woman's reproductive rights in the abortion context. However, I caution against any such inferences. My interpretation of "person" in this case is unique to the wrongful death statute and is further informed by principles of tort law. The United States Supreme Court has addressed the abortion controversy by balancing a woman's reproductive rights under the federal Constitution against the state's interests in protecting unborn children. See Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992); Roe v. Wade, supra. In balancing these interests, the Supreme Court has held that, prior to viability, the state may not prohibit a woman from making the choice to terminate her pregnancy. See Planned Parenthood, supra. However, the Court has expressly acknowledged that where there is no protected liberty interest at stake, the government can adopt any view of life it desires:
It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Planned Parenthood, 505 U.S. at 851, 112 S. Ct. at 2806-07, 120 L. Ed. 2d 674 (citations omitted).
Unlike the abortion cases, wrongful death actions do not automatically implicate any countervailing, constitutional liberties. No one can argue in this case that the state or federal constitution shields the defendants' allegedly wrongful conduct. Without any protected liberty interest to balance, we are free to define "person" under the South Carolina wrongful death statute in a way that conforms with the law's purpose. In keeping with this Court's prior decisions which have liberally construed the wrongful death statute, I believe a definition of "person" that includes life from the point of conception comports with the statute's goal of affording a remedy to parties who could have sued if they had survived.
Our decisions in Hall and Fowler have already modified the holding of West. Today, I would overrule West and hold that a cause of action lies for the wrongful death of a nonviable fetus. My refusal to recognize a distinction between viability and nonviability is based on the same logical reasoning this Court used in refusing to recognize a distinction between viable fetuses which are born alive then die and viable fetuses killed in the womb. See Hall, supra; Fowler, supra. The logical underpinnings of those opinions have been a part of South Carolina's jurisprudence for four decades now. My dissent today is not formed by any new approach toward the definition of "person." Instead, this decision is the result of applying the logic of the relevant precedential cases in this area to the current issue at hand.
In this case, the concerns and justifications supporting our previous decisions militate toward an interpretation of "person" that will make the wrongful death statute consistent in its application. I note that it is within the power of our legislature to make the law more specific if it so chooses. Based on the foregoing, I would REVERSE the trial court's grant of summary judgment.
BURNETT, J., concurs.
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