concurring.
I agree with the majority that the trial court correctly determined that plaintiff failed to state a claim under the wrongful death statute for the death of the 16-week-old fetus. However, I write separately because I believe that the majority has failed to address adequately the Oregon Supreme Court’s interpretation of the wrongful death statute *697in Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636 (1974), the only case in which it has considered whether or when a fetus has a cause of action under the wrongful death statute.
The majority is correct that nothing in the text of the wrongful death statute or in its statutoiy context lends support to the notion that a fetus is a “person” for purposes of ORS 30.020.165 Or App at 693. To that extent, the majority correctly concludes that the statute is not ambiguous. However, under the rule of prior construction, we must treat the court’s decision in Libbee as part of the text and context of ORS 30.020, and treat it as “a part of the statute as if written into it at the time of its enactment.” Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992). Despite what the statutory text and context might otherwise suggest, the court in Libbee determined that a fetus, albeit a. much older fetus than the one in the present case, was a “person” for purposes of the wrongful death statute. Given that holding in Libbee, the majority errs in holding that ORS 30.020 is unambiguous regarding whether a 16-week-old fetus is a “person.”
Because of that ambiguity, the majority errs in thinking that this case may be resolved at the “first level” of the statutoiy construction framework set forth in PGE v. Bureau of Labor and Industries, 317 Or 610, 859 P2d 1143 (1993). That brings us to an interesting point: How are we to apply the PGE framework here, given that the requirements for statutory construction set forth in PGE are entirely at odds with the approach to statutory construction used by the court in Libbee?1 Keeping in mind the inherent difficulties of imposing the current structure of statutory construction on a foundation that was not designed to support such weight, I will attempt to blend the two distinct approaches to the question.
As the majority correctly concludes, under the PGE analysis of the text and context of the wrongfiil death statute, there is little indication that the term “person” encompassed a fetus. However, in light of Libbee, I know that the term *698“person” as used in that statute does encompass “viable fetus.” Without any discussion whatsoever of why a viable fetus and a nonviable fetus should be treated differently under the law, the majority leaps to the conclusion that a viable fetus is a “person” for purposes of ORS 30.020 but that a nonviable fetus is not a person for purposes of that statute. In light of the text and context of the wrongful death statute, 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, then 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.”
*699As 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.
The Libbee court did not even quote the text of the statute it was supposedly interpreting, much less make any attempt to construe the word “person” as used in the statute.