Alexander v. Whitman

ALEXANDER; Drazin, Dennis Karen Warshaw,

Esq.; Drazin and WHITMAN; Peter Vernier Todd

Christine

o;1 Mathis; Stephen R. Roth Janice S. Conda;

man; Robert Elton A. W. Jr.;

Hentges; Harry Freitag, Maria A. Soto; Wag Donald H.

Yizcarrondo-De Leo;

ner; De Hoffman Donald W. Susan Oswald; Hoag

Greene; Kevin J. Carol Pecoraro; Muhler;

land; Marie S. *John Fisher; Masseri; Rosalie V.

Franklin Wood; Noble; A. B. Vernon

Geneva

Nancy Fitzgibbons; Conti; Ann P. Al Barnaby Ruh; Maria

bert J. Greenwald. Alexander, individually and on be

Karen similarly situated; persons

half of all Drazin, individually Esq., and on

Dennis attorneys similarly all situat

behalf of Warshaw,

ed; profes Drazin & individually corporation, and on

sional similarly situated, of all firms

behalf

Appellants.

No. 95-5414. Appeals, Court of

United States

Third Circuit. 9,May

Argued May

Decided Attorney Attorney 1. Deborah T. Poritz was the General for ed the General. Pursuant to Fed. 43(c), R.App.Proc. Peter Vemiero is automatical- the State of New when this suit was insti- time, ly party plaintiff substituted as a T. Deborah tuted. Since that Deborah Poritz re- T. Poritz. signed Attorney appointed General and was * Caption per Chief Justice of the Court of New Jer- amended the Clerk's order of sey. Subsequently, appoint- Peter Vemiero 10/25/95. Réspect

World Federation of Doctors Who Life. Newell, Adubato,

Paul E. & Newell Free- hold, NJ, Curiae, for Amicus Association of Lawyers Jersey. Trial of America —New GREENBERG, Before: ALITO and McKEE, Judges. Circuit THE OPINION OF COURT McKEE, Judge. Circuit Alexander, Drazin, Karen Esq., Dennis Warshaw, and the law firm of Drazin and P.C., appeal from the district court’s dismiss- complaint al of their under Fed R.Civ.P. 12(b)(6). alleged had Plaintiffs that New Jersey’s Wrongful Act, Death N.J.S.A. Act, seq., et 2A:31-1 and Survival Action 2A:15-3, N.J.S.A. violate the Protec- tion and Due Process Clauses of the Four- teenth Amendment of United States Con- deny stitution because a cause action of statutory to the beneficiaries unless a fetus past For survives birth. reasons follow, disagree will and affirm the dis- complaint. trict court’s dismissal

I. FACTS Cassidy (Argued), Gregory Harold J. R. July 15,1992, Alexander, On Karen F. Milne, Cassidy, Foss Filippo, & San Red eight was then one-half preg- and months Bank, NJ, Appellants. for nant, Jersey was admitted to the Shore Med- give ical Center to to her The birth child. Verniero, General, Attorney Jeffrey Peter signs vital of baby Ms. Alexander’s were Silkowitz, (Argued), J. Miller Andrea M. As- only prior delivery taken fourteen minutes General, Trenton, NJ, Attorneys sistant for section, by cesarean and the appeared fetus Appellees, Todd Christine Whitman and Pe- however, healthy. Tragically, normal and ter Verniero. the child was stillborn.2 Kevitz, Counsel, County Ronald Morris W. autopsy performed, An and a death (Argued), Randall Bush First Assistant showing certificate was issued of date Counsel, Morristown, NJ, for Appellee, John July child’s birth as 1992. The birth Pecoraro. certificate Kaylyn noted the child’s name was Margulies, Wind, Robert E. Margulies, Elissa Alexander and that she was “stillborn” NJ, Herrington Knopf, Jersey City, & for collapse.” due “cardio-vaseular Curiae, Amicus Andrea Marilyn GuiUianand July 13, 1994, On Karen Alexander filed a Gotay. complaint Superior in the Court Mon- Collier, Jr., Collier, Richard F. County, Jersey, Jacob & mouth New seeking dam- Mills, NJ, Somerset, Curiae, for Amicus ages individually3 capacity and plaintiffs' summary judgment motion for Appendix, hospital's at 37. The state records Id. "interpartum states child had that the child died demise.” "while she was still in birth, her mother’s and womb before her actual action, In the state court Karen Alexander and was declared therefore 'stillborn'." Joint recovery seeks capacity in her individual for Bennett, A.2d 139 the Es- dina v. N.J. Prosequendum of Ad Administratrix Deceased, Alexander, (1988)), Jersey and the Survival Action Kaylyn New Elissa tate Act, Wrongful Jersey they deny Death Act are unconstitutional because under 2A:31-1, recovery as General Adminis- and on behalf of stillborn fetuses. N.J.SA. alia, Kaylyn Alexan- requested, Elissa of the Estate Plaintiffs inter these trator Deceased, der, unconstitutional, Surviv- under the an or- statutes declared statute, 2A:15-3. Action N.J.SA. directing surrogate al letters of der issue alleged negligence of doc- that the complaint Kaylyn the estate of Elissa administration nurses, personnel health tors, Alexander, and other care money Karen and injured Center had Jersey Shore Medical damages. in her baby while was still Alexander’s Ms. P.C., Warshaw, Drazin and Drazin & indi- requested Ms. Alexander mother’s womb. attorneys on all vidually and and behalf County is- Monmouth Surrogate (the plaintiffs”), law firms “Drazin raised the Prosequen- Ad Letters Administration sue statutes, challenge constitutional to the same and General Letters Administration dum alleged rights their constitutional Kaylyn Elissa Alexander. the Estate of precluded they are are violated because Surrogate October On bringing death and survival actions Ad Prose- request for Letters denied potential on behalf of clients whose children Kaylyn had been because Elissa quendum were stillborn because of tortious acts stillborn. parties. third Karen Alexander October On December On Governor Drazin, lawyer, and a New Dennis (the Attorney defen- General “State P.C., firm, Warshaw, filed & law Drazin dants”) filed a motion to dismiss the com- under 42 U.S.C. complaint action class 12(b)(6). under The Sur- plaint Fed.R.Civ.P. in the District Court § 1983 United States (the defendants”) rogates “County thereafter The suit Jersey. for the District of join in the state defendants’ moved 'Whitman, individually, Christine Todd named 12(b)(6) motion. Plaintiffs then cross-moved Jersey, of New as Governor of the State summary judg- and for for class certification Poritz, individually, Attor- T. and as Deborah ment. Jersey,4 and ney of New General the State in Surrogates twenty-one counties of all Subsequently, Surrogates of the ex- fifteen as defendants. Judgment.5 Fol- Consent Orders ecuted individually, brought the action on behalf lowing argument, granted district court allegedly had been mothers whose fetuses all motion to dismiss. the State defendants’ by acts of a injured útero the tortious plaintiffs’ Consequently, motions for class stillborn, on party and were later third summary judgment were certification for child, and on of her own stillborn behalf appeal This denied. followed.6 all children who were simi- behalf of stillborn complaint alleged viola- larly situated. The II. STANDARD OF REVIEW Pro- Protection and Due tions of plenary over a We exercise review clauses of Fourteenth Amendment. cess dismissing complaint court’s order Essentially, complaint alleged the New district 12(b)(6). (as Moore v. Tart Wrongful interpreted Act under Fed.R.Civ.P. Death (3d Cir.1993). ler, We 986 F.2d 685 Jersey Supreme Court Giar- the New suffering locutory of the court. which and final orders district and mental emotional distress (112A-147A). allegedly caused from the stillbirth resulted malpractice medical of the defendants. complaint sought mon- 6.Plaintiffs' section 1983 1, supra. (Count V) damages declaratory 4. See n. in- ey (Counts I, II, IV). junctive III and Howev- relief Orders, appealing the court’s Surrogates er,plaintiffs are district By those Consent fifteen 5. complaint oppos- as it relates to their any of their agreed not to further submissions dismissal file money Appeal damages. See legal plain- for Notice ing of the claim the factual and contentions 148). (Joint Appendix, agreed to be bound all future inter- tiffs and 1398 may plaintiff be entitled to amounting

must determine caused under circumstances any reading relief under reasonable law to a crime. Allentown, City v. pleadings, Holder N.J.S.A. 2A:31-1. (3d Cir.1993), assuming the F.2d damages An wrongful award of in a allegations factual of all the truth death punishment action “is not a matter of complaint. D.R. v. Middle Area Bucks Voca providing for an errant defendant or of Sch., 972 F.2d tional Technical greater decedent’s next of kin to a extent (3d Cir.1992). may A court dismiss a com able, than decedent himself would have been

plaint only if it is clear that relief could replacement but is rather a for that which granted under set facts that could be likely provided decedent would and no proven allegations. with the consistent Hi Serrano, Hudgins more.” N.J.Super. 69, 73, 104 King Spalding, 467 shon v. & 224 (App.Div.1982). A.2d 2229, 2232-33, (1984).7 recovery amount of is based the contri butions, monetary terms, reduced to III. DISCUSSION might reasonably decedent have been

expected to make to his or her survivors. A. THE STATUTORY SCHEME Alfone, 403 Damages A.2d are award pecuniary only, ed for loss and not for helpful briefly It discuss the two feelings, suffering, mental or loss of soci dispute causes of action at issue in this be- ety companionship. Id. eco proceeding analysis. fore with our dependency nomic is not the sole measure of damages. may Minor children recover DEATH WRONGFUL ACTION. pecuniary care, guid value of the loss of parent ance and during advice of a purpose The fundamental of a minority. addition, Id. wrongful compensate death action is to sur permits hospital, statute the award of pecuniary vivors for the losses suffer expenses. medical and funeral N.J.S.A. because of the tortious conduct of others. 2A:31-5. Sarno, N.J.Super. 403 A2d Alfone (App.Div.1979), on other modified A death action is available 99, (1981). grounds, 432 87 N.J. A.2d 857 when child is killed the tortious act of This action recognized cause of was not another. purely common law and is a creature of parents When wrongful sue for the 194, Creecy, statute. v. 54 Schmoll N.J. 254 child, damages death of a should not (1969). 525, A.2d Jersey’s Wrong 527 New limited to pe- the well-known elements of provides, ful Death Act in part, relevant as cuniary loss such as the loss of the value of follows: anticipated the help child’s with household person chores, When the'death of a is caused anticipated or the loss of direct act, wrongful neglect default, or such as financial contributions the child after he ____ would, ensued, if death had not have enti- or wage she becomes a earner [I]n injured person addition, tled the jury allowed, maintain an the should be under damages resulting inju- action for appropriate circumstances, from the to award dam- ry, person the who would have ages parents’ been liable for the loss of their child’s damages injury in for the if death companionship they grow older, had not as when it ensued shall be in may hable an action valuable, for be most needed and as well damages, notwithstanding the death of guidance as the advice and that often ac- person injured although and companies the death was it. 964, (3d appeal Cir.1992). However, Our standard of review on an from a F.2d 973 because summary judgment plenary, denial of find that district court’s dismissal of the Waldorf Shuta, (3d Cir.1990), 12(b)(6) v. complaint 896 F.2d 728 and prop- under Fed.R.Civ.P. was er, our review of class certification propriety determinations is we need not address the of its normally plaintiffs' limited to summary judg- whether the district court denial of motions for abused Corp., its discretion. Lusardi v. Xerox ment and for class certification.

I399 Co., Bittner, County A.2d 211 Mercer Traction 127 A. 85 N.J. Green (N.J.1925). (1980). However, modify action for addi- Survival statutes damages these pecuniary provide their rule and that the are confined to the common law tional items right value, personal trespass action in including not the value of emotion- survives personal representative of the to the dece- al loss. Id. Id., dent’s estate. at 559. an for death of Damages and, “like infant likewise recoverable are Jersey’s Action New Survival damages generally, are limit wrongful-death provides statute as follows: ... ] [such as] to economic matters[ ed may Executors and administrators have help child’s pecuniary value of the any trespass an action for done chores, pecuniary value household property, personal, or real or contributions, and anticipated financial child’s against testator intestate their or tres- companion pecuniary value the child’s passer, damages their recover Carey ship parents grow ... older.” as the or had if testator intestate would have he Lovett, A.2d 132 N.J. living. 211). (1993) Green, 424 A.2d at How (citing wrong- In those actions based ever, evaluating the eco problem “[t]he act, another, neglect, ful or default of life is of a obvious. nomic value newborn’s injuries death from where resulted for much, anything, about one can know No would had a deceased or future the infant and his economic lived, action if had the executor he or however, difficulty, not worth. That should may all administrator recover reasonable appro preclude any award. award is Some expenses funeral and in addition to burial inferences, though esti priate even during damages the lifetime of the accrued on uncertain damages, mate of based deceased. Carey, 622 A.2d at 1291. ties.” “gives A action N.J.S.A. 2A:15-3. survival aspect of Jer particular right or executors administrators a action gives sey’s wrongful death rise to action injury damage for tortious deceased controversy from hold the instant arises property prior incurred to death.” or his Bennett, ing Giardina v. N.J. major Alfone, 403 item of A.2d at (1988). There, A.2d 139 (aside damages a survival action held the New Court recovery expenses) and burial for funeral permit Wrongful Act recov Death does suffering pain and between the decedent’s ery damages for to the attributable time of and the time death. However, though even a fetus. pain suffering an for award parents recover for the death of the cannot suffering only pain appropriate cases, they can recover dam fetus such Recovery permitted also conscious. Id. is injuries ages for own that result from their i.e., enjoyment damages,” loss of for “hedonic malpractice the tortious conduct. “[M]edical Falco, 435, N.J.Super. Eyoma v. 247 of life. causing a tort an infant stillbirth constitutes 653, (App.Div.1991). 589 A.2d 658 in against parents, entailing the direct injury, fliction of distress and emotional not address The court in Giardina did suffering, for are entitled mental which chil- rights recovery on behalf of stillborn damages.” compensatory Id. 545 Jersey’s to recover under survival action. dren New A.2d at 139. court here found that district by implications holding of the “it is clear 2. SURVIVAL ACTION. language of the in Giardina and law, that bring action statute itself right At an action survival common provide Legislature Jersey did intend trespass personal and died with the in News, Inc., fetuses parents 96 stillborn v. York of unborn person. Canino New (1984). 189, for survival.” 528, statutory action A.2d Accord- with N.J. 475 529 Dist.Ct.Op. party ap- Neither to this actions, wrongful at 13. ingly, like death survival portion actions, disagrees that of the dis- peal and not exist. v. Trenton did Soden 1400 holding, and we will “person”

triet court’s therefore equal who is denied the protection Jersey’s action, because, law, assume survival of the law under New action, wrongful like the death limited wrongful and survival can actions situations where the fetus survives until after maintained on behalf children birth. injured prenatally, are born and as a then die prenatal injury, whereas,

result of the under law, B. KAREN ALEXANDER’S CLAIM ON New death and survival HER CHILD BEHALF OF AND ALL actions cannot be maintained on behalf of OTHER SIMILARLY SITUATED stillborn children.

STILLBORN FETUSES. However, Ms. can Ms. Alexander asserts a claim under only claim establish a on behalf of child her § 42 behalf of U.S.C. 1983 on her stillborn under the Fourteenth Amendment child, Elissa, Kaylyn all stillborn and children (and situated) fall(s) similarly child others fetuses, alleging the exclusion of within protections “person[s]” afforded stillborn children and fetuses from the cover as that term is used in the Fourteenth age Jersey’s of New death and Amendment, it it clear does not. The survival actions violates United States already Court has § decided that dif provides 42 1983 Constitution. U.S.C. Wade, for us in Roe question ficult v. part: relevant 410 113, 158, 705, 729, U.S. 93 S.Ct. 35 L.Ed.2d who, Every person any under color of (1973). There, expressly the Court held statute, ordinance, regulation, custom, or ‘person,’ “the word as used in Four State..., usage, any subjects, or causes teenth Amendment does not include the un subjected, to be any citizen of the United born.” The held “person” Court has jurisdic- States or within other “application 157, only postnatally.” tion Id. deprivation any thereof to the rights, privileges, S.Ct. at That princi or immunities 728-29. secured constitutional laws, ple shall recently Constitution be lia- was more re-affirmed ble party injured to the action at Planned Parenthood Southeastern Penn law, suit in equity, proper or other pro- sylvania Casey, 505 U.S. ceeding for redress. (1992). There, Stevens, writing Justice separately § 42 U.S.C. 1983. Section 1983 “is not itself joint O’Connor, from the opinion of Justices rights, a source of substantive but method Souter, Kennedy that, wrote vindicating rights as a matter federal elsewhere con- law, federal constitutional parts ferred is a those United fetus States “developing Constitution organism ‘per and federal statutes that yet de- is not ” McCollan, scribes.” Baker son’ and “does not have what is sometimes ” 145 n. 99 S.Ct. 2695 n. 61 L.Ed.2d 913,112 Id. ‘right described as a to life.’ (1979). (Stevens, J., S.Ct. at part concurring in part). and dissenting in principle This “re Ms. on Alexander’s claim behalf of her mains a premise fundamental of our constitu stillborn grounded child is Pro- governing reproductive tional law tection autono Clause of the Fourteenth Amend- my.” Id. at ment, S.Ct. at Since provides that: “No State shall deny persons ... the jurisdiction to unborn are not person within its within mean the the equal protection ing Amendment, of of the laws.” the Fourteenth claim CONST, XIV, § essence, l.8 alleging protection amend. In equal an Ms. violation be can argues that her stillborn brought child was on behalf of the stillborn child.9 brought 8. Our discussion of claim the on encompassed behalf lows that the unborn not with- of the child stillborn assumes that Karen Alexan- meaning "person” in the the of terai or "citizen" standing der has to assert the claim. purposes § 42 U.S.C. of 1983. See Reed Gardner, Cir.1993). (7th 986 F.2d 1127-28 persons 9. Because the not unborn are within the Amendment, meaning of the Fourteenth it fol- course, above, inqui- upon Plaintiffs’ reliance the ad our as noted Of technology medical vanees of is likewise be as pleaded all facts true accept must well ry point. Plaintiffs contend that Roe side the that complaint the avers the and we note part upon medical was based limited and being from the was a human child stillborn knowledge technological and scientific However, conception.10 even if of moment advances since Roe was decided allow us to fact, a matter of is as established study development human from the molecu controlling law to determine look to must fact, plaintiffs lar In stage. claim that the effect, any, upon our that fact has what provided evolving Roe for an jurispru Court inquiry not a factual one. It analysis. is Our keep pace of dence to with state medicine is a legal question The not whether is a one. judiciary, and science when it wrote “the at being a human from the child is stillborn point development this in the of man’s knowl that un- conception, whether of but moment edge, position speculate not in a to to is as being” within the “human is included born question to the of when human answer” Brief, in the Four- meaning “person” contained begins. Appellants’ of life See at 41-42. technology no advance or sci legal question That was teenth Amendment. depart ence can authorize us to from well years ago twenty-four when over resolved legal precedent, and we do not established fact, In Supreme Court decided Roe. Supreme to grant believe the Court intended specifically be- differentiated Court there a license to do so in Roe. into life inquiry when be- the factual tween Similarly, plaintiffs’ on what reliance scope of legal of the gins, and the issue underpinning to an believe essential The Amendment. Court stated: Fourteenth Jersey Supreme Court’s decision question the difficult need not resolve We Brennan, 353, 157 Smith v. 31 N.J. A.2d 497 begins. those trained in of when life When (1960), not does make constitutional claim medicine, phi- disciplines of respective a cogni raised on of the stillborn child behalf losophy, theology Brennan, and are unable arrive zable one. the New any consensus, judiciary, Supreme at this Court held children sur at injury bring a can a prenatal vive cause of man’s point development in the knowl- against action in tort who caused position speculate a as edge, not in prenatal injury.11 explained court the answer. holding noting its authori “[m]edical Thus, 410 U.S. at long recognized ties that a child is in complaint pleads that a immaterial that conception, existence from the moment of being concep- is a human from stillborn child merely part body.”12 and a of its not mother’s Id. 157 A2d at 502. tion. ¶ surviving complaint did a a it is that: not allow child In 40 of averred injuries. prenatal in tort for Stemmer v. every age action As a matter of fact a child at recognize gestation conception to a cause of action for from birth is com- Kline declined based, plete, separate irreplaceable being large prenatal injury part, and human Diet- daughter of Karen F. Alexander all Northampton, rich 138 Mass. v. Inhabitants of similarly are actual human mothers situated Am.Rep. (Sup.Jud.Ct.1884), which was a beings relationships who have moth- appar- death case where child was carrying relationship ers This between them. ently held stillborn. Dietrich that Massachusetts' separate, complete these two individual human inapplicable to a fe- death statute beings throughout preg- is in actual existence tus, part on its view that child is of its based fact, experi- nancy. child can As matter separate and does have a mother before birth eight pain beginning ence weeks after con- personality. or existence ception up to the time of actual birth. As a fact, baby matter of Karen F. Alexander's import holding 12.Perhaps realizing its daughter similarly all children situated that a child in existence from moment experi- ages eight conception after weeks conception, qual- the New Court during pain ence suffer trauma language. court ified its wrote: damage bodily sys- result or the necessary tems for the continuance life argument an whether unborn The semantic child. being" "person to be is a seems us to child question Kline, point. that There is no beside 11. v. Brennan overruled Stemmer Smith (N.J.1942), biological processes conception sets in motion 128 N.J.L. A.2d plaintiffs attempt leverage sylvania, 855-61, lan- to this 505 U.S. at

The S.Ct. at that guage by arguing Therefore, the New Su- plaintiffs’ 2808-12. argument preme recognized as fact Court has scientific imperfect that Roe was based on science is to being unborn child is a human that an no avail.14 conception. the moment of even Accordingly, properly the district court assuming recognized the court has this as 12(b)(6) granted equal pro- dismissal of the fact, follow it does not that that court has tection claim raised on behalf of the stillborn recognized the unborn child be a also to child. “person” under the Fourteenth Amendment. Moreover, had, if it it clear even should be KAREN C. CLAIM ALEXANDER’S ON holding that no such could contravene or BEHALF OF HERSELF AND OTHER contrary holding reverse the United SIMILARLY SITUATED MOTHERS. Quite Supreme Court. simply, States’ person” state cannot “declare a fetus a asserting Besides a claim on behalf of her thereby persons to add “new the constitu- child, stillborn Karen Alexander asserts Dworkin, population.” tional Ronald TJnenu- claim on her own behalf and on behalf of all Rights: merated Whether and Roe How mothers whose children were stillborn be- Overruled, Be Should 59 U.CHI.L.REV. the tortious conduct of others. She addition, 400. In Smith com- was decided on claims that her interest relationship principles mon and created a law common during with her pregnancy unborn child ais remedy surviving law for a child harmed protected fundamental interest by the United prenatal injury. No federal constitutional States Constitution that challenged implicated in principles were that court’s statutes violate both the Due Process and analysis. Equal Protection Clauses of the Fourteenth plaintiffs’ to argument The short answer is Amendment. issue is not whether the unborn are beings, whether the human but unborn are THE 1. DUE PROCESS CLAIM. beyond persons.13 ques- constitutional It is only Due Process not knowledge Clause tion that medical scientific requires government that the significantly appro has since follow advanced Roe. Howev- er, advances, priate procedures it “deprive even those when seeks life, consistently person liberty has Court adhered to Roe’s or property,” it also holding persons prevents unborn government un- “certain regard actions der the Fourteenth procedures Amendment. See less of the fairness used to implement Williams, Planned Parenthood Penn- Southeastern them.” Daniels v. produce every O'Connor, Interestingly, which if will undisturbed what writing Justice person being. one will to be a concede If in Casey, the Court clearly in Planned Parenthood v. processes disrupt- the meanwhile those can be acknowledged the advances in medical knowl- bom, resulting ed in harm to the child when edge since Roe. She wrote: is immaterial whether before birth the child "We have seen how time has overtaken some being. regardless considered a And assumptions: law, Roe's factual analogies advances in ma- justice other of requires areas of the principle recognized ternal health care that the allow for abortions safe legal right begin has a pregnancy child with a life mother later in than was true in body. sound mind and If con- and advances in neonatal care have ad- right, duct of another interferes with that viability point vanced to a somewhat earlier. by competent proof it can be established go only But these facts to the scheme of time is a there causal connection between the interests, competing limits on the realization of interference and harm suffered divergences premises and from the factual bom, damages the child when for such bearing validity of 1973 on the should harm be recoverable the child. holding, viability Roe's central marks the Smith, 157 A.2d at 503. point earliest at which the State's interest in constitutionally adequate justify fetal life is phrase person" 13. “constitutional is Ronald Dworkin, legislative nontherapeutic ban on abortions. Dworkin's. Ronald Unenumerated Parenthood, Rights: Planned. 505 U.S. at Whether and How Roe Should Be Over- S.Ct. at ruled, (citations omitted). 59 U.CHI.L.REV.

MQ3 851, at 112 662, 665, Pennsylvania, 505 U.S. S.Ct. 331, L.Ed.2d ern 327, 106 88 S.Ct. U.S. (1986). Thus, Due Clause at 2807. Process 662 guaran- component which

has substantive pro- step any “The due first substantive rights comprised “all fundamental tees that to cess review is determine the standard of by protected liberty are the term within Bd. review.” Sammon v. of by from invasion Federal Constitution Examiners, (3d 639, F.3d Med. 66 643-44 Southeast- Planned Parenthood States.” of Cir.1995). argues Ms. Alexander 847, 112 at S.Ct. Pennsylvania, 505 U.S. ern give must these New statutes strict Whitney California, v. 274 (quoting at 2804 they impact scrutiny upon because a woman’s 641, 373, 647, 357, 71 L.Ed. 47 U.S. S.Ct. fetus, and “relationship” with an unborn (1927) (Brandéis, J., concurring)). 1095 protected relationship is within this zone of of limits the substan- Although the “outer privacy compo- in the substantive included liberty Fourteenth sphere of which the tive of Due nent Process Clause. defined, have not protects" been Amendment rights or fundamental in Where 2805, Id., 848,112 protect- at S.Ct. at certain involved, regulation a state limit terests are protec- fall within the ambit ed liberties justified ing rights fundamental can be these Thus, Amendment those to whom the tion. by only compelling legis state interest right to be free applies have narrowly drawn to lative enactments must be right ... bodily but also the restraint only the express legitimate state interests at contract, the com- engage to to 154, Roe, 410 at at 727 stake. U.S. 93 S.Ct. life, acquire useful occupations mon omitted). (citations Therefore, state limita knowledge, marry, establish a home and right as the tions on a fundamental such children, bring up worship God accord- only right privacy permissible are own con- ing [their] the dictates of scrutiny. strict constitutional survive seience[s], enjoy generally to those Parenthood, 929, at 112 Planned 505 U.S. long recognized ... as essential privileges J., (cit (Blaekmun, dissenting) at 2847 S.Ct. orderly pursuit happiness free to the Connecticut, 479, ing U.S. Griswold 381 men. 1682, 85 S.Ct. Roth, 564, 572, 408 Regents v. U.S. Board of (1965)). However, rights fundamental where (1972) 2701, 2707, 548 33 L.Ed.2d 92 S.Ct. implicated infringed, are or or interests Nebraska, U.S. (quoting Meyer 262 the ration state statutes reviewed under 625, 626-27, 67 L.Ed. S.Ct. traditionally “the test. That is test al basis (1923)). of social or economic applied in the area addition, “prom the Constitution Roe, at 93 S.Ct. at legislation.” 410 U.S. personal a realm of ... that there is ise[s] J., (citing (Rehnquist, dissenting) Wil liberty may not en government Optical, v. Lee 348 U.S. liamson ter.” Planned Parenthood Southeastern (1955)). 461, 466, 99 Under L.Ed. S.Ct. Pennsylvania, at 112 S.Ct. at U.S. review, “a statute withstands rational basis right “personal 2805. The result process challenge if the due state substantive areas guarantee of certain privacy, or legitimate state interest identifies a Roe, 410 at privacy[.]” zones of rationally conclude was legislature could rights at 726. included within Sammon, at 66 F.3d served the statute.” “fundamental” and include zone are deemed relating “procrea marriage”, “activities argues tion”, that her rela “family relationships” Ms. Alexander “contraception”, during preg child rearing tionship Id. unborn “child and education.” interest, and 152-53, They nancy a fundamental in is itself therefore 93 S.Ct. scru receive strict personal that these statutes should most intimate volve “the they impact that relation tiny make in his or her because choices” a can not now determine ship. we need They “choices to the lifetime. include central her un relationship with a mother’s liberty Amend whether protected the Fourteenth during is a fundamen- pregnancy child born ment.” Planned Parenthood Southeast- the compelling recognition tal because statutes for interest case of di- the injury parents. here do not affect rect at issue Ms. Alexander’s the relationship her A with unborn child. moth- ... wrong We thus conclude that relationship exactly her is er’s fetus by negligently committed a doctor caus- bring wrong- she can a same whether or not ing pre-birth death of an infant consti- or It ful death survivor action. is not the against a tort parents. tutes here, relationship that is affected it is the Giardina, Thus, 545 A.2d at 141-42. con- ability to recover for the loss of that relation- trary here, to Ms. Alexander’s assertions ship. did pregnant Giardina not leave women de- against negligence fenseless that results Wrongful Neither the Death Act nor the fact, of death a fetus. In that court any Survival Action Act interfered with deci- began analysis noting: “[b]y its recognizing might sion Karen Alexander made or protect such a cause of action [in we tort] It impossi- made her stillborn child. is about interests affected the tortious conduct imagine us to that such ble for decision resulting in the death of an infant before would the least bit influenced whether Id. birth.” at 139. Those are the same inter- bring wrongful or could not a mother death by wrongful ests that are implicated death damages action to recover survival for the and survival Id.15 actions. loss of a fetus. Ms. Alexander’s assertion of heavily Karen Alexander also upon relies constitutionally impermissible interference v.Louisiana, Levy 68, 1509, 391 U.S. grounded with a fundamental interest (1968), companion case, 20 L.Ed.2d 436 its argument her that stillborn children and fe- Co., Glona v. Guar. American & Liab. Ins. being protection tuses are denied the of New 391 U.S. 88 S.Ct. 20 L.Ed.2d 441 Jersey’s tort The purpose law. of those (1968), and Weber Aetna Cas. Sur. laws, argues, “is she the deterrence of con- Co., 406 U.S. 92 S.Ct. 31 L.Ed.2d others, injures duct which kills and the (1972). However, those cases addressed promotion protect of caution health and constitutionality legislative of enactments Appellants’ life.” Brief at 4. The denial of against persons discriminated on the protection law’s alleged tort to be the having basis of been bom of out wedlock. resulting infringement her fundamental They implicate did not pro- substantive due relationship in her interest with her stillborn Instead, protection cess. equal were Appellants’ child. Brief at 32. statutory challenges Levy classifications. However, argument misstates the re- provisions invalidated the of a state statute ality Jersey’s system. of New tort law illegitimate that excluded children from the wrongful death and survival pre- statutes do class of children entitled to recover for clude from instituting Ms. Alexander certain parent’s death under Louisiana’s behalf, kinds law her suits on own and on death statute and Glona involved the same behalf of her unborn child. she is statute’s exclusion of mother from recover- being protection denied the of the state’s ing for the illegitimate of her remedy tort a tort law. She has and that son. provisions Weber invalidated the remedy is a common law action to compensation Louisiana’s workman’s statute any injury recover for emotional distress and unacknowledged illegitimate excluded malpractice herself when medical causes recovering children from for the death of baby. of a stillbirth wage-earner father. gravity of negligence, such deciding Levy, fore- Court rec- seeability parental suffering, ognized illegitimate right children’s genuineness present intimate, and loss to recover “involve[s] familial suggest Rather, 15. We do not mean to negligence providers. the Four- care health requires provide aspects teenth Amendment a state to mention tort law that serve to Indeed, remedy prenatal injuries. protect bodily tort for integrity, own and the health fetus, attempt assertion endemic in Ms. Alexander's to illustrate the weakness in her right Jersey's argument. a Due Hughes, fashion Process from See Parham 441 U.S. purported protect (1979), failure to her fetus 99 S.Ct. infra. own Clause the Fourteenth Amendment a child and his relationship between denying right ... to sue the child’s mother,” 88 S.Ct. Levy, 391 U.S. wrongful at death.” Id. 99 S.Ct. 1744. recognition the deci- informed 1511. That apply heightened However, The Court refused to the the in and Weber. sions Gloria Weber, scrutiny applied in upheld it had and of in each those cases interest at issue test, using the statute the “rational means” legitimacy, the child’s classification of the validity. presumption the concomitant and parent and to inability child “and the of both that classification The Court reasoned the imposed by illegitima- the burdens reverse a under the statute was rational established Tribe, H. AMERICAN CON- cy.” Laurence claims, limiting tort as means as well false (2d 16-24, § at 1554 LAW STITUTIONAL paternity. pri- claims of The Court focused 1988). The were not decided cases ed. classification, marily upon and not the did family relationship Ms. the as the basis of analysis upon its the statute base whether Hughes, the argues. In Parham v. right deprived plaintiff of a fundamental not- Levy its basis of and explained the Court passing seriously ing can not be “[i]t— progeny. —in argued statutory to for that a entitlement sue is of these decisions The basic rationale wrongful death of the another itself society for unjust that and ineffective right.” ‘fundamental’ or Id. at constitutional procreation express its condemnation to Equal at 1749. Ms. Alexander’s S.Ct. relationship punish- the marital outside Due fail Protection and Process claims must way inis ing illegitimate child the the reason. The not for same statutes do is unable responsible for his situation and her relationship interfere with fetus change it. to claims, she nor interfere with a do 352, 99 at 1746.16 441 U.S. at S.Ct. right. fundamental Parham, Georgia upheld Court the do, course, have a funda Parents persons the restricted class statute that liberty in the and mental interest care custo bring wrongful death entitled to who were children, Kramer, dy Santosky of their illegiti- of an recover for the death actions to 745, 753, 1388, 1394-95, S.Ct. statute, only the mate child. Under (1982); L.Ed.2d 599 see also Lehr v. Robert mother, legitimat- who had and those fathers son, 258, 103 463 U.S. prescribed in manner the child the ed (1983) (“[T]he relationship of statute, plaintiff file was the could suit. recognized family in a duty and unit is love had illegitimate child whom he father of an liberty in entitled to constitutional an interest had, however, legitimated. The father not Moreover, an protection.”). there is intense certificate and had signed child’s birth the consisting great joy emotional bond the support. to the child’s When contributed hope naturally develops between and in auto child its mother were killed an carrying the she is in her mother and child accident, brought wrongful father the Indeed, it the is the awareness of womb. moved in court. The defendant action state reality intensity of the mother-fetal bond summary judgment grounds on for the apparently the Su led be- applicable precluded statute suit parental right of to create a preme Court child, legitimated plaintiff' not had recovery for the emotional distress suffered court denied the motion on but trial malpractice parents medical when grounds that statute violated both Giardina, 545 A.2d causes stillbirth. Equal and Due Process Clauses. Protection Georgia re- appeal, Supreme Court On complaint versed, Karen Alexander’s actual thereafter Court Jersey has remedy that New accepted appeal from is with the tort that decision prefer to be able statutory provided. scheme vio- She would decide “whether [the] wrongful survival ac Due institute a death and lates Protection or Process why district court did not cite for understand Ms. Alexander criticizes the district court Glona, Levy, simply citing Levy. cases are not relying upon See or Weber.Those Roe while not even However, easy Appellant's it is relevant to the issues raised here. Br. at 40. of, to, tion, setting addition recovery either lieu limits on tort recognized in remedy requirement tort first Giardina death. on child there are rather Bennett.17 Since severe whose behalf a death and survival emotional on distress one limitations action is instituted been born alive is Giardina, rationally can recover for under the concern related to that interest. Jer- of a stillborn sey bright that the mother will has chosen to draw line that degree severity necessary nearly impossible able to show the problems eliminates recover, negligence spite the fact that proof inherent in such actions when shown. the fact causation are a fetus is at issue. Absent the limitation may prove not difficult, that a mother be able to the these statutes it would be not if degree necessary impossible, prohibit of emotional distress a wrongful or death given recover in a ease does not mean that early survival action no how matter the fetus are development. mothers whose children stillborn because in its This would méan of the tortious conduct of others are denied that one could recover could be estab- protection Jersey’s the law. tort that zygote lished a developed would have alleged injured an had not tortfeasor a devel- Jersey not in Since New has oping egg fertilized seconds after the union fringed upon any relationship Ms. Alexander sperm egg. Although a state could infant, had with her stillborn this substantive permit recovery for an to that which process due claim does not merit scru strict fetus, develop would later a into it is certain- tiny Accordingly, only inquire review. ly required to so not do under Due achieving see if it ais rational means of a Equal or Process Protection Clauses. Limit- legitimate subjecting interest. When state ing such actions in the manner that New review, state rational basis “a statute to court Jersey has chosen is both reasonable and guess ... legis is not entitled second practical. argues Ms. Alexander that includ- assumptions policy lature on factual or ing stillborn children and fetuses within the underlying considerations the statute.” Sam coverage wrongful death and survival ac- mon, only inquiry per F.3d at 645. would not Jersey’s tions harm New legiti- legislature rationally mitted “is whether interest in setting mate limits on tort recov- might that predicted have believed reac correct, ery. may She be but that is not tion or that would occur the desired end disagreement us to determine. Her is with up would be Id. It is served.” to the legislative policy decision about where challenging the statute “convince the court the line should be disputes drawn “those legislative that the facts on which the classifi legally are not relevant under substantive apparently cation [of statute] based process jurisprudence.” due Id. at 647. reasonably could not be conceived as true governmental at decisionmaker.” Id. EQUAL 2. THE PROTECTION CLAIM. (quoting 93, 111, Bradley, Vance v. 440 U.S. Equal Protection Clause of 939, 949-50, (1979)). 99 S.Ct. 59 L.Ed.2d 171 the Fourteenth Amendment “announces A pro statute “withstands due substantive principle: fundamental gov State must challenge cess legiti if the state identifies impartially,” City ern New York Transit Au mate legislature state that interest ra Beazer, 568, 587, v. thority 440 U.S. 99 S.Ct. tionally could conclude was served 1367, 1355, (1979), 59 L.Ed.2d 587 “di statute.” Id. at 645. similarly that ‘all persons rects circum argue cannot seriously

One shall be Plyler stanced treated alike.’” v. defining Doe, 202, no in 216, has interest 457 U.S. 102 S.Ct. (1982) injuries entitled to recover for and in (quoting Royster F.S. prove (1993). 17. To a claim for worry emotional distress 622 A.2d "The tortiously-caused fetus, caused of a every ... [attendant] stress the birth of prove "the mother must that she suffered emo- upset child will not suffice. will Nor physi- tional distress so severe that it in resulted parent every something goes wrong feels when in destroyed cal manifestations that it her basic delivery room.” Id. Lovett, security.” Carey emotional N 132 J. 40 vival acts creates two distinct classes.19 The Virginia, Guano Co. (1920)). 561-62, first class consists of all mothers whose in- 64 L.Ed. 989 S.Ct. jured Therefore, “[gjeneral apply even- fetuses are born but die as a result of rules jurisdic- prenatal injury. persons within the The second class—the handedly to all with the comply” Karen Alexander class—consists of all moth- unquestionably tion Beazer, at tortiously injured 440 U.S. Clause. ers whose fetuses are in Protection Only when a state 99 S.Ct. 1366-67. útero and die in the womb or stillborn as impact on “adopts special rule has a a result. New law allows a jurisdic- subject to persons all its less than in death and survival action to mothers question to whether the class, arise as tion” does in first not to those the second but 587- is violated. Id. at equal protection however, clause disputed; class. That much is not argument Ms. fails Alexander’s because she argues also that there is difference be- re clause does tween the mothers those two classes. She different fact quire things which are asserts that mothers her class sustained though are the law treated “the as other to whom same loss mothers 216, 102 Plyler, U.S. at S.Ct. same. 457 Jersey gives Appellants’ New the claim.” “The initial discretion determine 2394. Brief, may at 19. be true insofar While is ‘the same’ what is ‘different’ what similarity respec- as it states between the States.” Id. legislatures in the of resides tragedies, it true tive is not insofar Accordingly, Amendment “the Fourteenth attempts principle Equal a of foster Pro- scope of a wide discretion permits the States jurisprudence. tection groups of enacting which affect some laws differently than McGowan citizens others.” Equal Ms. Alexander’s Protec 420, 425, 81 S.Ct. Maryland, v. 366 U.S. parallels her claim in tion claim Due Process (1961). Therefore, 1101, 1105, 6 L.Ed.2d 393 argues Jersey’s that New classifica she pro statutory “a classification neither i.e., rights, a moth tion affects fundamental along infringes lines funda suspect ceeds nor relationship er’s interest in her with her rights upheld must be mental constitutional earlier, However, Karen child. as discussed challenge against equal protection if there is has how these Alexander not demonstrated reasonably state of facts that conceivable relationship affect with her un statutes classifi a for the provide could rational basis Therefore, Equal her own Pro born child. v. Comm. cation.” Federal Communications only to challenge tection is also entitled “ra Communications, U.S. Beach 508 scrutiny. The rational basis tional basis” 2101, 2096, 211 124 L.Ed.2d 113 S.Ct. “relatively a relaxed standard re standard is (1993).18 flecting the Court’s awareness Jersey’s distinctions is drawing of lines that create argues Ms. that New Alexander peculiarly legislative a task and an unavoid and fetuses from exclusion of the stillborn Bd. Retirement sur- able one.” Massachusetts coverage under the death and pregnant. posed are of all mothers who Comm. v. Beach in 18. Federal Communications challenge Due Process Clause volved a under the is the first class and is second class contained in provision of the of the Fifth Amendment composed pregnant children mothers whose Policy by operators Act Cable Communications injury. prenatal is a The third class sustain and television facili of satellite master antenna preg- of the second class consists subclass imposes on ties. Fifth Amendment Because the prenatal sustain a nant mothers whose children government re the same standard federal injury resulting of a child after live quired legislation by the Protection of state fourth class is also subclass birth. The Amendment, Schweiker of the Fourteenth Clause is the Karen Alexander class second class and 221, 6, 1074, Wilson, 450 n. 101 S.Ct. U.S. 226 composed pregnant whose chil- of all mothers 6, (1981), Due 1079 67 L.Ed.2d 186 Pro n. prenatal and are stillborn. dren sustain an “im cess Clause the Fifth Amendment has However, Brief, at we do Appellants’ See 16-17. Beach, plied equal protection guarantee." delineating four classes is neces- not think that U.S. S.Ct. at sary equal protection purposes this for argument. classes It the third and fourth posits Actually, classes. four Karen significant here. which are largest class and is com- The first class is the Doe, 312, 319-21, 113 Murgia, S.Ct. Heller v. 509 U.S. (1976). 2637, 2642-43, (1993). Although L.Ed.2d 520 moth- rationality could have chosen to afford all “standard of ... must find some injured footing subject ers fetuses a cause of in the whose realities of the ad statues, challenged legislation.” action under the wis- dressed Id. at doing Only dom is not before It is of not so us. S.Ct. at 2643. when the classification doing legality grounds of not so that must wholly “rests on irrelevant decide, not think objectives” and we do the distinction achievement the State’s does a illegal. that the state has drawn is fail statute rational basis review. Id. at 113 S.Ct. at 2644. equal protec- [R]ational basis review in analysis tion not a license for courts to Apparently, legislative history there wisdom, fairness, judge logic or determining to assist us in challenged if the legislative Nor rationally choices. does it authorize statutes are legitimate related to a judiciary superlegislature sit as [to] state legis- interest. the assumed judge desirability leg- wisdom Wrongful lative bases Death Act were policy islative determinations ar- extensively made discussed Giardina v. Bennett. rights There, eas affect neither fundamental Court ana- proceed along suspect nor lyzed lines. For these that statute and concluded that reasons, a involving legislature classification neither defined the death action rights along nor proceeding fundamental limiting with the intent of it to the class of suspect strong pre- lines is accorded a people persons by considered the common validity. sumption of Such a earlier, classification law. As noted Jersey legis- the New Equal run afoul of the cannot Protection doing lature nothing setting more than if is a relationship Clause there rational recovery limits on in tort those cases when a disparity between the of treatment and is killed the tortious conduct legitimate governmental purpose. some another. Accordingly, we no find violation of Further, legislature that creates these Protection Clause. categories actually need not articulate at purpose or support- time the rationale D. THE CLAIM OF THE DRAZIN Instead,

ing classification. its a classifica- PLAINTIFFS. upheld against equal protec- tion must be above, As noted Ms. Alexander’s at challenge any reasonably tion if there is (the torney and his firm plaintiffs) law Drazin pro- state of conceivable facts could challenge also They allege these statutes. vide a rational basis for the classifica- tion____ rights constitutional violation of their be they precluded bringing are presumed A statute is constitutional ... wrongful death and survival actions on behalf on attacking and the burden is the one of Karen potential Alexander and other legislative arrangement negative every clients whose children were stillborn because might it, conceivable basis which support of the parties. acts third We are or not the whether basis has a foundation provision aware of constitutional that cre Finally, in the record. courts are com- right attorneys in bring ates lawsuits pelled under rational-basis review to ac- under the circumstances involved here. cept legislature’s generalizations even Moreover, quite the district properly court imperfect when there is an fit between party concluded that Ms. is A means and ends. classification does not challenge best suited these statutes and fail rational-basis review because it is not plaintiffs held that the standing. Drazin lack nicety made with mathematical or because Wilentz, (3d See Amato v. 952 F.2d 742 practice it inequality. results some Cir.1991). problems government practical are may justify, Wilentz, ones and do not re- we noted an inquiry into quire, rough illogical, standing encompasses prudential also consid- accommodations— be, may and unscientific. erations. Independent asserting party- (citing San Antonio Sch. Dist. plaintiff third Where concrete, Rodriguez, redressa- standing has suffered S.Ct. (that (1973)). is, 1296-97, Rather, Article plaintiff has fun- ble L.Ed.2d exam- standing), courts are to III federal “have damental interests are those which ele- source, additional factual explicitly implicitly, ine at least three allowing proceed. the suit to Plyler, ments before (citing Constitution.” Id. 457 U.S. at First, (1982)). the relation- the court must examine n. 217 n. at 2395 third plaintiff and the ship between the forth For the reasons set above we hold second, asserted; rights whose party that Ms. Alexander has failed to establish ability must court consider Jersey’s on that New limitation rights— party to advance its own third unconstitutional, is death and survival actions right- impedes the some obstacle whether judgment therefore and we affirm third, suit; court holder’s own district court. impact party on third inquire into the must plaintiff interests —whether party consistent interests. third ALITO, Judge, concurring. Circuit (citations omitted). We add- 952 F.2d at 749 complete agreement I am almost “factors may court consider other ed that a opinion, I write the court’s but to comment ultimate may also relevant [that] First, briefly points. two I think that the on

prudential Id. at 750. consideration.” suggestion “hu- court’s that there could be Drazin the claim asserted nature of beings” per- “constitutional man are not woefully plaintiffs would short of these fall 1401-02) I (Maj.Op. is unfortunate. sons” comported with the even if it considerations point that the court agree with essential compo- controversy” more formal “case and making: held Court has Indeed, standing. Article III what- nents of “person” that a fetus not a within may plaintiffs assert loss the Drazin ever meaning of the Fourteenth Amendment. (if insignificance reduced to such here is non- the reference to constitutional tragic loss absurdity) Alexander’s Ms. context, persons, capable taken out of how the help can not but wonder that we misuse. seriously challenge plaintiffs Drazin can ruling as to lack of court’s district Second, I due think that our substantive Moreover, standing. we conclude that since by history. process inquiry informed must be here, violation is no constitutional

there that at the time of significant It is therefore plaintiffs’ marginal claim fails in Drazin Amendment adoption of the Fourteenth event. thereafter, right many years and for not child was IV. to a stillborn CONCLUSION recover v. Bennett, 111 recognized. See Giardina concluding, we wish to stress (1988); 545 A.2d Smith N.J. minimize immensi that we do not intend Brennan, 157 A.2d 31 N.J. ty tragic Any par loss. of Ms. Alexander’s (1960). appreciate it is of would monumental ent apply our task is to proportion. guide legal principles control

those

analysis thereby determine if the district dismissing the suit that was

court erred Though we un

brought under section 1983. parent how a would conclude that

derstand fundamental, here are

the interests stake apply. is not the we must “Funda test adjudica in constitutional

mental interests” general equivalent interests

tion are

“particular significance.” human or societal (3d Cir.1983) Cohen, F.2d

Price v.

Case Details

Case Name: Alexander v. Whitman

Court Name: Court of Appeals for the Third Circuit

Date Published: May 23, 1997

Citation: 114 F.3d 1392

Docket Number: 95-5414

Court Abbreviation: 3rd Cir.