Dissenting Opinion.
I respectfully dissent. For two reasons I respectfully disagree with the majority’s conclusion that the indictment was properly dismissed.
First, the majority wrongly creates an immunity from prosecution never enacted by the General Assembly. The majority fashioned its notion that the legislature intended to immunize Appellant from criminal responsibility for endangering her child from the preamble of the Maternal Health Act of 1992 which states “punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care and substance abuse treatment necessary to deliver a healthy newborn.” That section of the preamble does not relate to the circumstances of this case. The majority ignores the fact that in this case, no punitive action was taken against Appellant while she was pregnant. Long before she was indicted, Appellant had completed all her prenatal care and delivered her baby. Because the indictment came after her baby was born, it in no way discouraged her from seeking prenatal care and it in no way deterred her from treatment she might need to deliver a healthy baby. Thus, the legislative purpose to be gleaned from the preamble of the bill is in no way furthered by dismissal of Appellant’s indictment.
Had it been the General Assembly’s intent and purpose to block prosecutions in cases such as Appellant’s, it surely would have effectuated that intent by enacting the necessary revisions of the penal code and the controlled substance statutes, rather than simply hoping that prosecutors and judges would decipher the supposed purpose from the vague and general language of a bill’s preamble, the part of the bill that never became part of the law. Jasper v. Commonwealth, 375 S.W.2d 709, 710 (Ky.1964) (“The preamble is not the law. It is not necessary for its enactment, nor are its provisions binding.”)
*331Secondly, Kentucky jurisprudence has long acknowledged the strong doctrine of separation of powers provided in our state Constitution. Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922) (“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution....”) We have long recognized under that doctrine that the judicial branch of government has no authority to dismiss a valid indictment without the consent of the executive branch represented by the Commonwealth’s Attorney or the County Attorney.6
The indictment does not charge that Appellant wantonly endangered her unborn child. The indictment very plainly charges her with endangei’ing her post-natal, born alive child, which by any definition is a “person.” Despite the fact that the Appellant consumed cocaine just hours or minutes before her baby’s birth, the alleged victim of her conduct was the child ex útero. Nothing in our penal code bars such a prosecution. By upholding the trial court’s dismissal of an indictment before trial, the majority invades the prosecutorial powers reserved to the executive branch, and usurps the authority of the legislature to define what behavior constitutes criminal conduct. I therefore dissent.
MINTON, C.J., joins.
. Flynt v. Commonwealth, 105 S.W.3d 415, 425 (Ky.2003); Allen v. Walter, 534 S.W.2d 453, 455 (Ky.1976). See also Commonwealth v. Cundiff, 149 Ky. 37, 147 S.W. 767, 768 (1912) and Com. v. Hayden, 489 S.W.2d 513, 516 (Ky.1972) ("There is no authority for the use of summary judgment procedure in a criminal prosecution.”); Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399, 400 (1913) ("[the trial court] is without power to dismiss a sufficient indictment without a trial of the defendant, when such dismissal is objected to by the commonwealth’s attorney”).