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Ladu v. Oregon Clinic3/1/2000
ute, which includes the Oregon Supreme Court's prior interpretation of that statute in Libbee, the statute is ambiguous as to whether the term "person" encompasses a nonviable 16-week-old fetus for purposes of a PGE analysis.
Accordingly, the next step should be to discern whether legislative history reveals the intent of the legislature. See PGE, 317 Or at 611-12 (if legislature's intent is not clear from text and context, court considers legislative history). The parties acknowledge, and I agree, that no pertinent legislative history as to the meaning of the term "person" used in the wrongful death statute is available. None exists from the original passage of the statute, and, although the statute has been amended a number of times since its passage, none of the amendments changed the use of the word "person" in any discernible manner.
Where the legislative intent cannot be discerned from text, context and legislative history, the court turns to general maxims of statutory construction to determine the meaning of a statutory term. Id. at 612. It is at this level of the statutory construction analysis that one of the court's considerations in Libbee comes into play. The relevant maxim is set forth in State v. Kitzman, 323 Or 589, 602, 920 P2d 134 (1996):
"When, after consideration of the text, context, and legislative history of a statute, the intent of the legislature remains unclear, then the court resorts to general maxims of statutory construction to resolve the uncertainty. PGE, 317 Or at 612, 859 P2d 1143. Here, the applicable maxim is that, when one plausible construction of a statute is constitutional and another plausible construction of a statute is unconstitutional, courts will assume that the legislature intended the constitutional meaning. Statutes therefore will be construed accordingly."
As the court implicitly acknowledged in Libbee, the United States Supreme Court's holding in Roe v. Wade constrains the state's ability to protect the life of a nonviable fetus. Moreover, Roe specifically recognizes the constitutional right of a pregnant woman to choose to terminate a pregnancy by aborting a nonviable fetus. A holding that Oregon's wrongful death statute permits the personal representative of a nonviable fetus to bring suit for the death of the fetus would put that statute directly into conflict with a pregnant woman's constitutional right to bring about the death of such a nonviable fetus. Although a holding that the wrongful death statute permits the personal representative of a nonviable fetus to bring suit for the death of the fetus might not necessarily create a statute that was facially unconstitutional, it would create a statute that would be unconstitutional as applied in a number of situations where the death of the nonviable fetus is the result of an elective abortion. Consequently, I would choose the statutory construction that avoids this obvious constitutional problem, which clearly was a major consideration of the Libbee court when it chose to draw a distinction between viable and nonviable fetuses in reaching its conclusion that the full-term fetus at issue in that case had a cause of action. Therefore, I conclude that the trial court correctly determined that ORS 30.020 does not provide a cause of action for the wrongful death of a nonviable 16- week-old fetus.
Edmonds, Wollheim, and Brewer, JJ., join in this concurrence.
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