Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-1997

Alexander v. Whitman
Precedential or Non-Precedential:

Docket 95-5414




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Filed May 23, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-5414

KAREN ALEXANDER; DENNIS DRAZIN, ESQ.;
DRAZIN AND WARSHAW,

v.

CHRISTINE TODD WHITMAN; PETER VERNIERO;1
JANICE S. MATHIS; STEPHEN R. ROTHMAN; ELTON A.
CONDA; W. ROBERT HENTGES; HARRY A. FREITAG, JR.;
MARIA VIZCARRONDO-DE SOTO; DONALD H. WAGNER;
DONALD W. DE LEO; SUSAN HOFFMAN GREENE;
CAROL OSWALD; KEVIN J. HOAGLAND; MARIE S.
MUHLER; *JOHN PECORARO; FRANKLIN V. FISHER;
ROSALIE MASSERI; GENEVA B. WOOD; VERNON A.
NOBLE; NANCY FITZGIBBONS; ANN P. CONTI; ALBERT J.
RUH; MARIA BARNABY GREENWALD

Karen Alexander, individually and on behalf of all persons
similarly situated; Dennis Drazin, Esq., individually and
on behalf of all attorneys similarly situated; and Drazin &
Warshaw, a professional corporation, individually and on
behalf of all firms similarly situated,

Appellants

*Caption amended per the Clerk's order of 10/25/95




_________________________________________________________________
1. Deborah T. Poritz was the Attorney General for the State of New Jersey
when this suit was instituted. Since that time, Deborah T. Poritz
resigned as Attorney General and was appointed Chief Justice of the
Supreme Court of New Jersey. Subsequently, Peter Verniero was
appointed the Attorney General. Pursuant to Fed. R. App. Proc. 43(c),
Peter Verniero is automatically substituted as a party plaintiff for
Deborah T. Poritz.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(Civil No. 94-5229)

Argued: May 9, 1996

Before: GREENBERG, ALITO and McKEE, Circuit Judges

(Opinion filed: May 23, 1997)

HAROLD J. CASSIDY, ESQ. (Argued)
GREGORY R. MILNE, ESQ.
Cassidy, Foss & San Filippo
225 Broad Street
P.O. Box 896
Red Bank, NJ 07701

Attorneys for Appellants

PETER VERNIERO, ESQ.
Attorney General
JEFFREY J. MILLER, ESQ. (Argued)
ANDREA M. SILKOWITZ, ESQ.
Assistant Attorneys General
Richard J. Hughes Justice Complex
CN-112
Trenton, NJ 08625

Attorneys for Appellees, Christine
Todd Whitman and Peter Verniero

                   2
RONALD KEVITZ, ESQ.
Morris County Counsel
W. RANDALL BUSH, ESQ. (Argued)
First Assistant Counsel
Administration and Records Building
CN 900
Morristown, NJ 07963

Attorneys for Appellee, John Pecoraro

ROBERT E. MARGULIES, ESQ.
Marguiles, Wind, Herrington &
 Knopf
15 Exchange Place
Suite 510
Jersey City, NJ 07302

Attorneys for Amicus Curiae,
Andrea Guillian and Marilyn Gotay

RICHARD F. COLLIER, JR., ESQ.
Collier, Jacob & Mills
580 Howard Avenue
Corporate Park III
Somerset, NJ 08873

Attorney for Amicus Curiae,
The World Federation of Doctors Who
Respect Life

PAUL E. NEWELL, ESQ.
Newell & Adubato
80 Court Street
Freehold, NJ 07728

Attorneys for Amicus Curiae,
Association of Trial Lawyers of
America - New Jersey

                   3
OPINION OF THE COURT

McKEE, Circuit Judge

Karen Alexander, Dennis Drazin, Esq., and the lawfirm
of Drazin and Warshaw, P.C., appeal from the district
court's dismissal of their complaint under Fed R. Civ. P.
12(b)(6). Plaintiffs had alleged that New Jersey's Wrongful
Death Act, N.J.S.A. 2A:31-1 et seq., and Survival Action
Act, N.J.S.A. 2A:15-3, violate the Equal Protection and Due
Process Clauses of the Fourteenth Amendment of the
United States Constitution because they deny a cause of
action to the statutory beneficiaries unless a fetus survives
past birth. For the reasons that follow, we disagree and will
affirm the district court's dismissal of the complaint.

I. FACTS

On July 15, 1992, Karen F. Alexander, who was then
eight and one-half months pregnant, was admitted to the
Jersey Shore Medical Center to give birth to her child. The
vital signs of Ms. Alexander's baby were taken only fourteen
minutes prior to delivery by cesarean section, and the fetus
appeared normal and healthy. Tragically, however, the child
was stillborn.2

An autopsy was performed, and a death certificate was
issued showing the date of the child's birth as July 15,
1992. The birth certificate noted the child's name was
Kaylyn Elissa Alexander and that she was "stillborn" due to
"cardio-vascular collapse."

On July 13, 1994, Karen Alexander filed a complaint in
the Superior Court of Monmouth County, New Jersey,
seeking damages individually3 and in her capacity as
_________________________________________________________________

2. In plaintiffs' motion for summary judgment states that the child died
"while she was still in her mother's womb and before her actual birth,
and was therefore declared `stillborn'." Joint Appendix, at 37. The
hospital's records state that the child had "interpartum demise." 

the state court action, Karen Alexander seeks recovery in her
individual capacity for the emotional distress and mental suffering which
resulted from the stillbirth allegedly caused by the medical malpractice
of the defendants.

                    4
Administratrix Ad Prosequendum of the Estate of Kaylyn
Elissa Alexander, Deceased, under the New Jersey Wrongful
Death Act, N.J.S.A. 2A:31-1, and as General Administrator
of the Estate of Kaylyn Elissa Alexander, Deceased, under
the New Jersey Survival Action statute, N.J.S.A. 2A:15-3.
The complaint alleged that the negligence of doctors,
nurses, and other health care personnel at Jersey Shore
Medical Center had injured Ms. Alexander's baby while it
was still in her mother's womb. Ms. Alexander requested
that the Surrogate of Monmouth County issue Letters of
Administration Ad Prosequendum and General Letters of
Administration for the Estate of Kaylyn Elissa Alexander.
On October 18 and 31, 1994, the Surrogate denied the
request for Letters Ad Prosequendum because Kaylyn Elissa
had been stillborn.

On October 28, 1994, Karen Alexander and Dennis
Drazin, a New Jersey lawyer, and Drazin & Warshaw, P.C.,
a law firm, filed a class action complaint under 42 U.S.C.
§ 1983 in the United States District Court for the District of
New Jersey. The suit named Christine Todd Whitman,
individually, and as Governor of the State of New Jersey,
Deborah T. Poritz, individually, and as Attorney General of
the State of New Jersey,4 and the Surrogates of all twenty-
one counties in New Jersey as defendants. Alexander
brought the action individually, on behalf of all mothers
whose fetuses had allegedly been injured in utero by the
tortious acts of a third party and who were later stillborn,
on behalf of her own stillborn child, and on behalf of all
stillborn children who were similarly situated. The
complaint alleged violations of the Equal Protection and
Due Process clauses of the Fourteenth Amendment.
Essentially, the complaint alleged the New Jersey Wrongful
Death Act (as interpreted by the New Jersey Supreme Court
in Giardina v. Bennett, 

(N.J. 1988)), and the
New Jersey Survival Action Act are unconstitutional
because they deny recovery on behalf of stillborn fetuses.
Plaintiffs requested, inter alia, that these statutes be
declared unconstitutional, an order directing the surrogate
to issue letters of administration in the estate of Kaylyn
Elissa Alexander to Karen Alexander, and money damages.
_________________________________________________________________

4. See n. 

.

                      5
Drazin and Drazin & Warshaw, P.C., individually and on
behalf of all attorneys and law firms (the "Drazin
plaintiffs"), raised the same constitutional challenge to the
statues, and alleged that their constitutional rights are
violated because they are precluded from bringing wrongful
death and survival actions on behalf of potential clients
whose children were stillborn because of the tortious acts
of third parties.

On December 11, 1995, the Governor and the Attorney
General (the "State defendants") filed a motion to dismiss
the complaint under Fed. R. Civ. P. 12(b)(6). The Surrogates
(the "County defendants") thereafter moved to join in the
state defendants' 12(b)(6) motion. Plaintiffs then cross-
moved for class certification and for summary judgment.

Subsequently, fifteen of the Surrogates executed Consent
Orders of Judgment.5 Following argument, the district court
granted the State defendants' motion to dismiss.
Consequently, plaintiffs' motions for class certification and
for summary judgment were denied. This appeal followed.6

II. STANDARD OF REVIEW

We exercise plenary review over a district court's order
dismissing a complaint under Fed. R. Civ. P. 12(b)(6). Moore
v. Tartler, 

, 685 (3d Cir. 1993). We must
determine if plaintiff may be entitled to relief under any
reasonable reading of the pleadings, Holder v. City of
Allentown, 

, 193 (3d Cir. 1993), assuming the
truth of all the factual allegations in the complaint. D.R. v.
Middle Bucks Area Vocational Technical Sch., 

, 1367 (3d Cir. 1992). A court may dismiss a
_________________________________________________________________

5. By those Consent Orders, the fifteen Surrogates agreed not to file any
further submissions opposing the factual and legal contentions of the
plaintiffs and agreed to be bound by all future interlocutory and final
orders of the district court. (112A-147A).

6. Plaintiffs' section 1983 complaint sought money damages (Count V)
and declaratory and injunctive relief (Counts I, II, III and IV). However,
plaintiffs are not appealing the district court's dismissal of their
complaint as it relates to their claim for money damages. See Notice of
Appeal (Joint Appendix, at 148).

                    6
complaint only if it is clear that no relief could be granted
under any set of facts that could be proven consistent with
the allegations. Hishon v. King & Spalding, 

, 73
(1984).7

III. DISCUSSION

A. THE STATUTORY SCHEME

It is helpful to briefly discuss the two causes of action at
issue in this dispute before proceeding with our analysis.

1. WRONGFUL DEATH ACTION.

The fundamental purpose of a wrongful death action is to
compensate survivors for the pecuniary losses they suffer
because of the tortious conduct of others. Alfone v. Sarno,

, 12 (N.J. Super. Ct. App. Div. 1979), modified
on other grounds, 

(N.J. 1979). This cause of
action was not recognized at common law and is purely a
creature of statute. Schmoll v. Creecy, 

, 527
(N.J. 1969). New Jersey's Wrongful Death Act provides, in
relevant part, as follows:

 When the death of a person is caused by a wrongful
act, neglect or default, such as would, if death had not
ensued, have entitled the person injured to maintain
an action for damages resulting from the injury, the
person who would have been liable in damages for the
injury if death had not ensued shall be liable in an
action for damages, notwithstanding the death of the
person injured and although the death was caused
under circumstances amounting in law to a crime.

N.J.S.A. 2A:31-1.
_________________________________________________________________

7. Our standard of review on an appeal from a denial of summary
judgment is plenary, Waldorf v. Shuta, 

, 728 (3d Cir. 1990),
and our review of class certification determinations is normally limited to
whether the district court abused its discretion. Lusardi v. Xerox Corp.,

, 973 (3d Cir. 1992). However, because we find that the
district court's dismissal of the complaint under Fed. R. Civ. P. 12(b)(6)
was proper, we need not address the propriety of its denial of plaintiffs'
motions for summary judgment and for class certification.

                    7
An award of damages in a wrongful death action "is not
a matter of punishment for an errant defendant or of
providing for decedent's next of kin to a greater extent than
decedent himself would have been able, but is rather a
replacement for that which decedent would likely have
provided and no more." Hudgins v. Serrano, 

,
224 (N.J. App. Div. 1982). The amount of recovery is based
upon the contributions, reduced to monetary terms, which
the decedent might reasonably have been expected to make
to his or her survivors. 

. Damages
are awarded for pecuniary loss only, and not for injury to
feelings, mental suffering, or loss of society or
companionship. 

dependency is not
the sole measure of the damages. Minor children may
recover the pecuniary value of the loss of care, guidance
and advice of a parent during their minority. 

the wrongful death statute permits the award of hospital,
medical and funeral expenses. N.J.S.A. 2A:31-5.

A wrongful death action is available when a child is killed
by the tortious act of another.

 When parents sue for the wrongful death of a child,
damages should not be limited to the well-known
elements of pecuniary loss such as the loss of the value
of the child's anticipated help with household chores,
or the loss of anticipated direct financial contributions
by the child after he or she becomes a wage earner. . . .
[I]n addition, the jury should be allowed, under
appropriate circumstances, to award damages for the
parents' loss of their child's companionship as they
grow older, when it may be most needed and valuable,
as well as the advice and guidance that often
accompanies it.

Green v. Bittner, 

, 211 (N.J. 1980). However,
damages for these additional items are confined to their
pecuniary value, not including the value of the emotional
loss. 

the wrongful death of an infant are likewise
recoverable and, "like wrongful-death damages generally,
are limited to economic matters[ ] [such as] . . . the
pecuniary value of the child's help with household chores,

                    8
the pecuniary value of the child's anticipated financial
contributions, and the pecuniary value of the child's
companionship . . . as the parents grow older." Carey v.
Lovett, 

, 1291 (N.J. 1993)(citing 

). However, "[t]he problem in evaluating the
economic value of a newborn's life is obvious. No one can
know much, if anything, about the infant and his or her
future economic worth. That difficulty, however, should not
preclude any award. Some award is appropriate even
though the inferences, and estimate of damages, are based
on uncertainties." 

.

The particular aspect of New Jersey's wrongful death
action that gives rise to the instant controversy arises from
the holding in Giardina v. Bennett, 

(N.J.
1988). There, the New Jersey Supreme Court held that the
New Jersey Wrongful Death Act does not permit recovery
for damages attributable to the wrongful death of a fetus.
However, even though the parents cannot recover for the
death of the fetus in such cases, they can recover damages
for their own injuries that result from the tortious conduct.
"[M]edical malpractice causing an infant stillbirth
constitutes a tort against the parents, entailing the direct
infliction of injury, their emotional distress and mental
suffering, for which they are entitled to recover
compensatory damages." 

2. SURVIVAL ACTION.

At common law, a right to bring an action in trespass
was personal and died with the person. Canino v. New York
News, Inc., 

, 529 (N.J. 1984). Accordingly,
survival actions, like wrongful death actions, did not exist.
Soden v. Trenton and Mercer County Trust Co., 

,
559 (N.J. 1925). Survival action statutes modify the
common law rule and provide that the personal right of
action in trespass survives to the personal representative of
the decedent's estate. 

New Jersey's Survival Action statute provides as follows:

 Executors and administrators may have an action for
any trespass done to the person or property, real or
personal, of their testator or intestate against the

                    9
trespasser, and recover their damages as their testator
or intestate would have had if he was living.

 In those actions based upon the wrongful act,
neglect, or default of another, where death resulted
from injuries for which the deceased would have had a
cause of action if he had lived, the executor or
administrator may recover all reasonable funeral and
burial expenses in addition to damages accrued during
the lifetime of the deceased.

N.J.S.A. 2A:15-3. A survival action "gives executors or
administrators a right of action for tortious injury or
damage to the deceased or his property incurred prior to
death." 

. The major item of damages
in a survival action (aside from funeral and burial
expenses) is recovery for the decedent's pain and suffering
between the time of injury and the time of death. However,
an award for pain and suffering is appropriate only for pain
and suffering that is conscious. 

also
permitted for "hedonic damages," i.e., loss of enjoyment of
life. Eyoma v. Falco, 

, 658 (N.J. Super. Ct.
App. Div. 1991).

The court in Giardina did not address rights of recovery
on behalf of stillborn children under New Jersey's survival
action. However, the district court here found that "it is
clear by the implications of the holding in Giardina and by
the language of the survival action statute itself that the
New Jersey Legislature did not intend to provide the
parents of unborn or stillborn fetuses with a statutory
cause of action for survival." Dist. Ct. Op. at 13. Neither
party to this appeal disagrees with that portion of the
district court's holding, and we will therefore assume that
New Jersey's survival action, like the wrongful death action,
is limited to situations where the fetus survives until after
birth.

B. KAREN ALEXANDER'S CLAIM ON BEHALF OF HER
CHILD AND ALL OTHER SIMILARLY SITUATED
STILLBORN FETUSES.

Ms. Alexander asserts a claim under 42 U.S.C. § 1983 on
behalf of her stillborn child, Kaylyn Elissa, and all stillborn

                     10
children and fetuses, alleging that the exclusion of stillborn
children and fetuses from the coverage of New Jersey's
wrongful death and survival actions violates the United
States Constitution. 42 U.S.C. § 1983 provides in relevant
part:

 Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . ., subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in any
action at law, suit in equity, or other proper proceeding
for redress.

42 U.S.C. § 1983. Section 1983 "is not itself a source of
substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United
States Constitution and federal statutes that it describes."
Baker v. McCollan, 

, 144 n.3 (1979).

Ms. Alexander's claim on behalf of her stillborn child is
grounded in the Equal Protection Clause of the Fourteenth
Amendment, which provides that: "No State shall .. . deny
to any person within its jurisdiction the equal protection of
the laws." U.S. CONST. amend. XIV, § 1.8 In essence, Ms.
Alexander argues that her stillborn child was a "person"
who is denied the equal protection of the law because,
under New Jersey law, wrongful death and survival actions
can be maintained on behalf of children who are injured
prenatally, are born and then die as a result of the prenatal
injury, whereas, under New Jersey law, wrongful death and
survival actions cannot be maintained on behalf of stillborn
children.

However, Ms. Alexander can only establish a claim on
behalf of her child under the Fourteenth Amendment if her
child (and others similarly situated) fall(s) within the
protections afforded "person[s]" as that term is used in the
Fourteenth Amendment, and it is clear it does not. The
_________________________________________________________________

8. Our discussion of the claim brought on behalf of the stillborn child
assumes that Karen Alexander has standing to assert the claim.

                    11
Supreme Court has already decided that difficult question
for us in Roe v. Wade, 

, 158 (1973). There, the
Court expressly held that "the word `person,' as used in the
Fourteenth Amendment does not include the unborn." The
Court held that "person" has "application only postnatally."

That constitutional principle was more recently
re-affirmed in Planned Parenthood of Southeastern
Pennsylvania v. Casey, 

, 846 (1992). There,
Justice Stevens, writing separately from the joint opinion of
Justices O'Connor, Kennedy and Souter, wrote that, as a
matter of federal constitutional law, a fetus is a "developing
organism that is not yet a `person' " and"does not have
what is sometimes described as a `right to life.' " 

(Stevens, J., concurring in part and dissenting in part).
This principle "remains a fundamental premise of our
constitutional law governing reproductive autonomy." 

Since the unborn are not persons within the meaning
of the Fourteenth Amendment, no claim alleging an equal
protection violation can be brought on behalf of the
stillborn child.9

Of course, as noted above, our inquiry must accept all
well pleaded facts as true and we note that the complaint
avers that the stillborn child was a human being from the
moment of conception.10 However, even if that is
_________________________________________________________________

9. Because the unborn are not persons within the meaning of the
Fourteenth Amendment, it follows that the unborn are not encompassed
within the meaning of the term "person" or"citizen" for purposes of 42
U.S.C. § 1983. See Reed v. Gardner, 

, 1127-28 (7th Cir.
1993).

10. In ¶ 40 of the complaint it is averred that:

As a matter of fact a child at every age of gestation from conception
to birth is a complete, separate and irreplaceable human being and
the daughter of Karen F. Alexander and all mothers similarly
situated are actual human beings who have relationships with their
mothers carrying them. This relationship between these two
separate, complete individual human beings is in actual existence
throughout pregnancy. As a matter of fact, a child can experience
pain beginning at eight weeks after conception up to the time of
actual birth. As a matter of fact, Karen F. Alexander's baby daughter
and all children similarly situated from ages eight weeks after
conception experience pain and suffer during trauma or as a result
of injury or the damage to bodily systems necessary for the
continuance of the life of the child.

                     12
established as a matter of fact, we must look to controlling
law to determine what effect, if any, that fact has upon our
analysis. Our inquiry is not a factual one. It is a legal one.
The question is not whether a stillborn child is a human
being from the moment of conception, but whether that
unborn "human being" is included within the meaning of
"person" contained in the Fourteenth Amendment. That
legal question was resolved over twenty-four years ago
when the Supreme Court decided Roe. In fact, the Court
there specifically differentiated between the factual inquiry
into when life begins, and the legal issue of the scope of the
Fourteenth Amendment. The Court stated:

We need not resolve the difficult question of when life
begins. When those trained in the respective disciplines
of medicine, philosophy, and theology are unable to
arrive at any consensus, the judiciary, at this point in
the development of man's knowledge, is not in a
position to speculate as to the 

. Thus, it is immaterial that the complaint
pleads that a stillborn child is a human being from
conception.

Plaintiffs' reliance upon the advances of medical
technology is likewise beside the point. Plaintiffs contend
that Roe was based in part upon limited medical and
scientific knowledge and that technological advances since
Roe was decided allow us to study human development
from the molecular stage. In fact, plaintiffs claim that the
Roe Court provided for an evolving jurisprudence to keep
pace with the state of medicine and science when it wrote
"the judiciary, at this point in the development of man's
knowledge, is not in a position to speculate as to the
answer" to the question of when human life begins. See
Appellants' Brief, at 41-42. However, no advance in
technology or science can authorize us to depart from well
established legal precedent, and we do not believe the
Supreme Court intended to grant a license to do so in Roe.

Similarly, plaintiffs' reliance on what they believe to be an
essential underpinning of the New Jersey Supreme Court's
decision in Smith v. Brennan, 

(N.J. 1960),
does not make the constitutional claim raised on behalf of

                    13
the stillborn child a cognizable one. In Brennan, the New
Jersey Supreme Court held that children who survive a
prenatal injury can bring a cause of action in tort against
the person who caused the prenatal injury.11 The court
explained its holding by noting that "[m]edical authorities
have long recognized that a child is in existence from the
moment of conception, and not merely a part of its mother's
body."12 

The plaintiffs attempt to leverage this language by
arguing that the New Jersey Supreme Court has recognized
as scientific fact that an unborn child is a human being
from the moment of conception. However, even assuming
the court has recognized this as fact, it does not follow that
that court has also recognized the unborn child to be a
_________________________________________________________________

11. Smith v. Brennan overruled Stemmer v. Kline, 

(N.J.
1942), which did not allow a surviving a child a cause of action in tort
for prenatal injuries. Stemmer v. Kline declined to recognize a cause of
action for prenatal injury based, in large part, upon Dietrich v.
Inhabitants of Northampton, 

, 52 Am.Rep. 242 (Sup. Jud.
Ct. 1884), which was a wrongful death case where the child was
apparently stillborn. Dietrich held that Massachusetts' wrongful death
statute was inapplicable to a fetus, based on its view that a child is part
of its mother before birth and does not have a separate existence or
personality.

12. Perhaps realizing the import of its holding that a child is in existence
from the moment of conception, the New Jersey Supreme Court qualified
its language. The court wrote:

 The semantic argument whether an unborn child is a "person in
being" seems to us to be beside the point. There is no question that
conception sets in motion biological processes which if undisturbed
will produce what every one will concede to be a person in being. If
in the meanwhile those processes can be disrupted resulting in
harm to the child when born, it is immaterial whether before birth
the child is considered a person in being. And regardless of
analogies to other areas of the law, justice requires that the
principle be recognized that a child has a legal right to begin life
with a sound mind and body. If the wrongful conduct of another
interferes with that right, and it can be established by competent
proof that there is a causal connection between the wrongful
interference and the harm suffered by the child when born, damages
for such harm should be recoverable by the child.

.

                    14
"person" under the Fourteenth Amendment. Moreover, even
if it had, it should be clear that no such holding could
contravene or reverse the contrary holding of the United
States' Supreme Court. Quite simply, a state cannot
"declare a fetus a person" and thereby add "new persons
to the constitutional population." Ronald Dworkin,
Unenumerated Rights: Whether and How Roe Should Be
Overruled, 59 U. CHI. L. REV . 381, 400. In addition, Smith
was decided on common law principles and created a
common law remedy for a surviving child harmed by a
prenatal injury. No federal constitutional principles were
implicated in that court's analysis.

The short answer to plaintiffs' argument is that the issue
is not whether the unborn are human beings, but whether
the unborn are constitutional persons.13 It is beyond
question that medical and scientific knowledge has
advanced significantly since Roe. However, even with those
advances, the Supreme Court has consistently adhered to
Roe's holding that the unborn are not persons under the
Fourteenth Amendment. See Planned Parenthood of
Southeastern 

. Therefore,
plaintiffs' argument that Roe was based on imperfect
science is to no avail.14
_________________________________________________________________

13. The phrase "constitutional person" is Ronald Dworkin's. Ronald
Dworkin, Unenumerated Rights: Whether and How Roe Should Be
Overruled, 59 U. CHI. L. REV . 381, 398.

14. Interestingly, Justice O'Connor, writing for the Court in Planned
Parenthood v. Casey, clearly acknowledged the advances in medical
knowledge since Roe. She wrote:

"We have seen how time has overtaken some of Roe's factual
assumptions: advances in maternal health care allow for abortions
safe to the mother later in pregnancy than was true in 1973, and
advances in neonatal care have advanced viability to a point
somewhat earlier. But these facts go only to the scheme of time
limits on the realization of competing interests, and the divergences
from the factual premises of 1973 have no bearing on the validity of
Roe's central holding, that viability marks the earliest point at which
the State's interest in fetal life is constitutionally adequate to justify
a legislative ban on nontherapeutic abortions.

Planned 

(citations omitted).

                     15
Accordingly, the district court properly granted a 12(b)(6)
dismissal of the equal protection claim raised on behalf of
the stillborn child.

C. KAREN ALEXANDER'S CLAIM ON BEHALF OF
HERSELF AND OTHER SIMILARLY SITUATED
MOTHERS.

Besides asserting a claim on behalf of her stillborn child,
Karen Alexander asserts a claim on her own behalf and on
behalf of all mothers whose children were stillborn because
of the tortious conduct of others. She claims that her
interest in her relationship with her unborn child during
pregnancy is a fundamental interest protected by the
United States Constitution and that the challenged statutes
violate both the Due Process and Equal Protection Clauses
of the Fourteenth Amendment.

1. THE DUE PROCESS CLAIM.

The Due Process Clause not only requires that the
government follow appropriate procedures when it seeks to
"deprive any person of life, liberty or property," it also
prevents "certain government actions regardless of the
fairness of the procedures used to implement them."
Daniels v. Williams, 

, 331 (1986). Thus, the
Due Process Clause has a substantive component which
guarantees that "all fundamental rights comprised within
the term liberty are protected by the Federal Constitution
from invasion by the States." Planned Parenthood of
Southeastern 

(quoting
Whitney v. California, 

, 373 (1927)(Brandeis,
J., concurring)).

Although the "outer limits of the substantive sphere of
liberty which the Fourteenth Amendment protects" have not
been defined, 

certain protected liberties fall
within the ambit of protection. Thus, those to whom the
Amendment applies have a right to be free

from bodily restraint but also the right . . . to contract,
to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the

                     16
dictates of [their] own conscience[s], and generally to
enjoy those privileges long recognized . . . as essential
to the orderly pursuit of happiness by free men.

Board of Regents v. Roth, 

, 572 (1972) (quoting
Meyer v. Nebraska, 

, 399 (1923)).

In addition, the Constitution "promise[s] .. . that there is
a realm of personal liberty which the government may not
enter." Planned Parenthood of Southeastern 

. The result is a right of "personal privacy,
or a guarantee of certain areas or zones of privacy[.]" 

. The rights included within that zone are
deemed "fundamental" and include "activities relating to
marriage", "procreation", "contraception", "family
relationships" and "child rearing and education." 

53. They therefore involve "the most intimate and personal
choices" a person can make in his or her lifetime. They
include "choices central to the liberty protected by the
Fourteenth Amendment." Planned Parenthood of
Southeastern 

.

"The first step in any substantive due process review is to
determine the standard of review." Sammon v. New Jersey
Bd. of Med. Exam's, 

, 643-44 (3d Cir. 1995).
Ms. Alexander argues that we must give these New Jersey
statutes strict scrutiny because they impact upon a
woman's "relationship" with an unborn fetus, and that
relationship is within this protected zone of privacy
included in the substantive component of the Due Process
Clause.

Where fundamental rights or interests are involved, a
state regulation limiting these fundamental rights can be
justified only by a compelling state interest and legislative
enactments must be narrowly drawn to express only the
legitimate state interests at stake. 

(citations omitted). Therefore, state limitations on a
fundamental right such as the right of privacy are
permissible only if they survive strict constitutional
scrutiny. Planned 

(Blackmun,
J., dissenting)(citing Griswold v. Connecticut, 

,
485 (1965)). However, where fundamental rights or
interests are not implicated or infringed, state statutes are

                    17
reviewed under the rational basis test. That is "the test
traditionally applied in the area of social or economic
legislation." 

(Rehnquist, J.,
dissenting)(citing Williamson v. Lee Optical Co., 

, 491 (1955)). Under rational basis review, "a statute
withstands a substantive due process challenge if the state
identifies a legitimate state interest that the legislature
could rationally conclude was served by the statute."

.

Ms. Alexander argues that her relationship with her
unborn child during pregnancy is itself a fundamental
interest, and that these statutes should receive strict
scrutiny because they impact upon that relationship.
However, we need not now determine whether a mother's
relationship with her unborn child during pregnancy is a
fundamental interest because the New Jersey statutes at
issue here do not affect Ms. Alexander's relationship with
her unborn child. A mother's relationship with her fetus is
exactly the same whether or not she can bring a wrongful
death or survivor action. It is not the relationship that is
affected here, it is the ability to recover for the loss of that
relationship.

Neither the Wrongful Death Act nor the Survival Action
Act interfered with any decision Karen Alexander made or
might have made about her stillborn child. It is impossible
for us to imagine that any such decision would be the least
bit influenced by whether or not a mother could bring a
wrongful death or survival action to recover damages for
the loss of a fetus. Ms. Alexander's assertion of a
constitutionally impermissible interference with a
fundamental interest is grounded in her argument that
stillborn children and fetuses are being denied the
protection of New Jersey's tort law. The purpose of those
laws, she argues, "is the deterrence of conduct which
injures and kills others, and the promotion of caution to
protect health and life." Appellants' Brief at 4. The denial of
the tort law's protection is alleged to be the resulting
infringement upon her fundamental interest in her
relationship with her stillborn child. Appellants' Brief at 32.

However, that argument misstates the reality of New
Jersey's tort law system. The wrongful death and survival

                     18
statutes do preclude Ms. Alexander from instituting certain
kinds of law suits on her own behalf, and on behalf of her
unborn child. However, she is not being denied the
protection of the state's tort law. She has a tort remedy and
that remedy is a common law cause of action to recover for
emotional distress and any injury to herself when medical
malpractice causes the stillbirth of a baby.

 The gravity of such negligence, the foreseeability of
parental suffering, and the genuineness of injury and
loss present a compelling case for recognition of the
direct injury to the parents.

 . . . We thus conclude that the wrong committed by
a doctor in negligently causing the pre-birth death of
an infant constitutes a tort against the parents.

. Thus, contrary to Ms.
Alexander's assertions here, Giardina did not leave
pregnant women defenseless against negligence that results
in the death of a fetus. In fact, that court began its analysis
noting: "[b]y recognizing such a cause of action [in tort] we
protect the interests affected by the tortious conduct
resulting in the death of an infant before birth." 

Those are the same interests that are implicated by
wrongful death and survival actions. Id.15

Karen Alexander also relies heavily upon Levy v.
Louisiana, 

(1968), its companion case, Glona v.
American Guar. & Liab. Ins. Co., 

(1968), and
Weber v. Aetna Cas. and Sur. Co., 

(1972).
However, those cases addressed the constitutionality of
legislative enactments that discriminated against persons
on the basis of having been born out of wedlock. They did
not implicate substantive due process. Instead, they were
equal protection challenges to statutory classifications.
_________________________________________________________________

15. We do not mean to suggest that the Fourteenth Amendment requires
a state to provide a tort remedy for prenatal injuries. Indeed, that
assertion is endemic in Ms. Alexander's attempt to fashion a Due
Process right from New Jersey's purported failure to protect her fetus
from the negligence of health care providers. Rather, we mention the
aspects of tort law that serve to protect her own bodily integrity, and the
health of the fetus, to illustrate the weakness in her argument. See
Parham v. Hughes, 

(1979), infra.

                    19
Levy invalidated the provisions of a state statute that
excluded illegitimate children from the class of children
entitled to recover for a parent's death under Louisiana's
wrongful death statute and Glona involved the same
statute's exclusion of a mother from recovering for the
wrongful death of her illegitimate son. Weber invalidated
the provisions of Louisiana's workman's compensation
statute which excluded unacknowledged illegitimate
children from recovering for the death of their wage-earner
father.

In deciding Levy, the Supreme Court recognized that the
illegitimate children's right to recover "involve[s] the
intimate, familial relationship between a child and his own
mother," 

. That recognition informed
the decisions in Glona and Weber. However, the interest at
issue in each of those cases was the classification of the
child's legitimacy, "and the inability of both parent and
child to reverse the burdens imposed by illegitimacy."
Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 16-24, at
1554 (2d ed. 1988). The cases were not decided upon the
basis of the family relationship as Ms. Alexander argues. In
Parham v. Hughes, the Court explained the basis of Levy
and its progeny.

The basic rationale of these decisions is that it is
unjust and ineffective for society to express its
condemnation of procreation outside the marital
relationship by punishing the illegitimate child who is
in no way responsible for his situation and is unable to
change 

.16

In Parham, the Court upheld a Georgia statute that
restricted the class of persons who were entitled to bring
wrongful death actions to recover for the death of an
illegitimate child. Under that statute, only the mother, and
those fathers who had legitimated the child in the manner
_________________________________________________________________

16. Ms. Alexander criticizes the district court for relying upon Roe while
not even citing Levy. See Appellant's Br. at 40. However, it is easy to
understand why the district court did not cite Levy, Glona, or Weber.
Those cases are simply not relevant to the issues raised here.

                     20
prescribed by statute, could file suit. The plaintiff was the
father of an illegitimate child whom he had not legitimated.
The father had, however, signed the child's birth certificate
and had contributed to the child's support. When the child
and its mother were killed in an auto accident, the father
brought a wrongful death action in state court. The
defendant moved for summary judgment on the grounds
that the applicable statute precluded the suit because
plaintiff had not legitimated the child, but the trial court
denied the motion on the grounds that the statute violated
both the Equal Protection and Due Process Clauses. On
appeal, the Georgia Supreme Court reversed, and the
Supreme Court thereafter accepted the appeal from that
decision to decide "whether [the] statutory scheme violates
the Equal Protection or Due Process Clause of the
Fourteenth Amendment by denying . . . the right to sue for
the child's wrongful death." 

The Court refused to
apply the heightened scrutiny it had applied in Weber, and
upheld the statute using the "rational means" test, and the
concomitant presumption of validity. The Court reasoned
that the classification established under the statute was a
rational means of limiting tort claims, as well as false
claims of paternity. The Court focused primarily upon the
classification, and did not base its analysis upon whether
the statute deprived plaintiff of a fundamental right noting
-- in passing -- "[i]t can not seriously be argued that a
statutory entitlement to sue for the wrongful death of
another is itself a `fundamental' or constitutional right." 

Ms. Alexander's Equal Protection and Due Process
claims must fail for the same reason. The statutes do not
interfere with her relationship with her fetus as she claims,
nor do they interfere with a fundamental right.

Parents do, of course, have a fundamental liberty interest
in the care and custody of their children, Santosky v.
Kramer, 

, 753 (1982); see also Lehr v.
Robertson, 

, 258 (1983)("[T]he relationship of
love and duty in a recognized family unit is an interest in
liberty entitled to constitutional protection."). Moreover,
there is an intense emotional bond consisting of the great
joy and hope that naturally develops between a mother and
the child she is carrying in her womb. Indeed, it is the
awareness of the reality and intensity of the mother-fetal

                    21
bond which apparently led the New Jersey Supreme Court
to create a parental right of recovery for the emotional
distress suffered by the parents when medical malpractice
causes a stillbirth. 

.

Karen Alexander's actual complaint is with the tort
remedy that New Jersey has provided. She would prefer to
be able to institute a wrongful death and survival action,
either in lieu of, or in addition to, the tort remedy first
recognized in Giardina v. Bennett.17 Since there are rather
severe limitations on the emotional distress that one can
recover for under Giardina, the concern is that the mother
of a stillborn will not be able to show the degree of severity
necessary to recover, in spite of the fact that negligence and
causation are shown. However, the fact that a mother may
not be able to prove the degree of emotional distress
necessary to recover in a given case does not mean that
mothers whose children are stillborn because of the
tortious conduct of others are denied the protection of New
Jersey's tort law.

Since New Jersey has not infringed upon any relationship
Ms. Alexander had with her stillborn infant, this
substantive due process claim does not merit strict scrutiny
review. Accordingly, we inquire only to see if it is a rational
means of achieving a legitimate state interest. When
subjecting a state statute to rational basis review,"a court
. . . is not entitled to second guess the legislature on the
factual assumptions or policy considerations underlying the
statute." 

. The only inquiry
permitted "is whether the legislature rationally might have
believed that the predicted reaction would occur or that the
desired end would be served." 

up to the person
challenging the statute to "convince the court that the
legislative facts on which the classification[of the statute]
is apparently based could not reasonably be conceived as
_________________________________________________________________

17. To prove a claim for emotional distress caused by the tortiously-
caused death of a fetus, "the mother must prove that she suffered
emotional distress so severe that it resulted in physical manifestations or
that it destroyed her basic emotional security." Carey v. Lovett, 

, 1288 (N.J. 1993). "The worry and stress . .. [attendant] upon the
birth of every child will not suffice. Nor will the upset that every parent
feels when something goes wrong in the delivery room." 

by the governmental decisionmaker." 

(quoting Vance v. Bradley, 

, 111 (1979)). A
statute "withstands a substantive due process challenge if
the state identifies a legitimate state interest that the
legislature rationally could conclude was served by the
statute." 

One cannot seriously argue that New Jersey has no
interest in defining who is entitled to recover for injuries
and in setting limits on tort recovery for wrongful death.
The requirement that the child on whose behalf a wrongful
death and survival action is instituted have been born alive
is rationally related to that interest. New Jersey has chosen
to draw a bright line that eliminates the nearly impossible
problems of proof inherent in such actions when injury to
a fetus is at issue. Absent the limitation in these statutes
it would be difficult, if not impossible, to prohibit a
wrongful death or survival action no matter how early the
fetus was in its development. This would mean that one
could recover if it could be established that a zygote would
have developed had not an alleged tortfeasor injured a
developing fertilized egg seconds after the union of sperm
and egg. Although a state could permit recovery for an
injury to that which would later develop into a fetus, it is
certainly not required to do so under the Due Process or
Equal Protection Clauses. Limiting such actions in the
manner that New Jersey has chosen is both reasonable and
practical. Ms. Alexander argues that including stillborn
children and fetuses within the coverage of wrongful death
and survival actions would not harm New Jersey's
legitimate interest in setting limits on tort recovery. She
may be correct, but that is not for us to determine. Her
disagreement is with the legislative policy decision about
where the line should be drawn and "those disputes are not
legally relevant under substantive due process
jurisprudence." 

2. THE EQUAL PROTECTION CLAIM.

The Equal Protection Clause of the Fourteenth
Amendment "announces a fundamental principle: the State
must govern impartially," New York Transit Authority v.
Beazer, 

, 587 (1979), and "directs that `all
persons similarly circumstanced shall be treated alike.' "

                    23
Plyler v. Doe, 

, 216 (1982)(quoting F.S. Royster
Guano Co. v. Virginia, 

, 415 (1920)). Therefore,
"[g]eneral rules that apply evenhandedly to all persons
within the jurisdiction unquestionably comply" with the
Equal Protection Clause. 

. Only
when a state "adopts a rule that has a special impact on
less than all persons subject to its jurisdiction" does a
question arise as to whether the equal protection clause is
violated. 

However, the clause does not require that things which
are different in fact be treated in law as though they are the
same. 

. "The initial discretion to
determine what is `different' and what is `the same' resides
in the legislatures of the States." 

Fourteenth Amendment permits the States a wide scope of
discretion in enacting laws which affect some groups of
citizens differently than others." McGowan v. Maryland, 

, 425 (1961). Therefore, "a statutory classification
that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against
equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis
for the classification." Federal Communications Comm. v.
Beach, 

, 313 (1993).18

Ms. Alexander argues that New Jersey's exclusion of the
stillborn and fetuses from coverage under the wrongful
death and survival acts creates two distinct classes.19 The
_________________________________________________________________

18. Federal Communications Comm. v. Beach involved a challenge under
the Due Process Clause of the Fifth Amendment to a provision of the
Cable Communications Policy Act by operators of satellite master
antenna and television facilities. Because the Fifth Amendment imposes
on the federal government the same standard required of state legislation
by the Equal Protection Clause of the Fourteenth Amendment, Schweiker
v. Wilson, 

, 226 n. 6 (1981), the Due Process Clause of the
Fifth Amendment has an "implied equal protection guarantee." 

.

19. Actually, Karen Alexander posits four classes. The first class is the
largest class and is composed of all mothers who are pregnant. The
second class is contained in the first class and is composed of pregnant
mothers whose children sustain a prenatal injury. The third class is a

                    24
first class consists of all mothers whose injured fetuses are
born but die as a result of the prenatal injury. The second
class -- the Karen Alexander class -- consists of all
mothers whose fetuses are tortiously injured in utero and
die in the womb or are stillborn as a result. New Jersey law
allows a wrongful death and survival action to mothers in
the first class, but not to those in the second class. That
much is not disputed; however, Ms. Alexander's argument
fails because she also argues that there is no difference
between the mothers in those two classes. She asserts that
mothers in her class sustained "the same loss as other
mothers to whom New Jersey gives the claim." Appellants'
Brief, at 19. While that may be true insofar as it states the
similarity between the respective tragedies, it is not true
insofar as it attempts to foster a principle of Equal
Protection jurisprudence.

Ms. Alexander's Equal Protection claim parallels her Due
Process claim in that she argues that New Jersey's
classification affects fundamental rights, i.e., a mother's
interest in her relationship with her child. However, as
discussed earlier, Karen Alexander has not demonstrated
how these statutes affect her relationship with her unborn
child. Therefore, her own Equal Protection challenge is also
entitled only to "rational basis" scrutiny. The rational basis
standard is a "relatively relaxed standard reflecting the
Court's awareness that the drawing of lines that create
distinctions is peculiarly a legislative task and an
unavoidable one." Massachusetts Bd. of Retirement v.
Murgia, 

, 314 (1976). Although New Jersey
could have chosen to afford all mothers whose fetuses are
injured a cause of action under the challenged statues, the
wisdom of not doing so is not before us. It is the legality of
_________________________________________________________________

subclass of the second class and consists of pregnant mothers whose
children sustain a prenatal injury resulting in the death of a child after
a live birth. The fourth class is also a subclass of the second class and
is the Karen Alexander class composed of all pregnant mothers whose
children sustain a prenatal injury and are stillborn. See Appellants'
Brief, at 16-17. However, we do not think that delineating four classes
is necessary for the purposes of this equal protection argument. It is the
third and fourth classes which are significant here.

                    25
not doing so that we must decide, and we do not think the
distinction that the state has drawn is illegal.

 [R]ational basis review in equal protection analysis is
not a license for courts to judge the wisdom, fairness,
or logic of legislative choices. Nor does it authorize the
judiciary [to] sit as a superlegislature to judge the
wisdom or desirability of legislative policy
determinations made in areas that affect neither
fundamental rights nor proceed along suspect lines.
For these reasons, a classification neither involving
fundamental rights nor proceeding along suspect lines
is accorded a strong presumption of validity. Such a
classification cannot run afoul of the Equal Protection
Clause if there is a rational relationship between
the disparity of treatment and some legitimate
governmental purpose. Further, a legislature that
creates these categories need not actually articulate at
any time the purpose or rationale supporting its
classification. Instead, a classification must be upheld
against equal protection challenge if there is any
reasonably conceivable state of facts that could provide
a rational basis for the classification. . . .

 A statute is presumed constitutional . . . and the
burden is on the one attacking the legislative
arrangement to negative every conceivable basis which
might support it, whether or not the basis has a
foundation in the record. Finally, courts are compelled
under rational-basis review to accept a legislature's
generalizations even when there is an imperfect fit
between means and ends. A classification does not fail
rational-basis review because it is not made with
mathematical nicety or because in practice it results in
some inequality. The problems of government are
practical ones and may justify, if they do not require,
rough accommodations -- illogical, it may be, and
unscientific.

Heller v. Doe, 

, 319-21 (1993). The "standard
of rationality . . . must find some footing in the realities of
the subject addressed by the legislation." 

Only
when the classification "rests on grounds wholly irrelevant

                     26
to the achievement of the State's objectives" does a statute
fail rational basis review. 

Apparently, there is no legislative history to assist us in
determining if the challenged statutes are rationally related
to a legitimate state interest. However, the assumed
legislative bases for the Wrongful Death Act were
extensively discussed in Giardina v. Bennett. There, the
New Jersey Supreme Court analyzed that statute and
concluded that the legislature defined the wrongful death
action with the intent of limiting it to the class of people
considered persons by the common law. As noted earlier,
the New Jersey legislature was doing nothing more than
setting limits on tort recovery in those cases when a person
is killed by the tortious conduct of another. Accordingly, we
find no violation of the Equal Protection Clause.

D. THE CLAIM OF THE DRAZIN PLAINTIFFS.

As noted above, Ms. Alexander's attorney and his law
firm (the Drazin plaintiffs) also challenge these statutes.
They allege a constitutional violation of their rights because
they are precluded from bringing wrongful death and
survival actions on behalf of Karen Alexander and other
potential clients whose children were stillborn because of
the wrongful acts of third parties. We are aware of no
constitutional provision that creates a right in attorneys to
bring lawsuits under the circumstances involved here.
Moreover, the district court quite properly concluded that
Ms. Alexander is the party best suited to challenge these
statutes and held that the Drazin plaintiffs lack standing.
See Amato v. Wilentz, 

(3d Cir. 1991).

In Wilentz, we noted that an inquiry into standing also
encompasses prudential considerations.

Where a plaintiff asserting third party standing has
suffered concrete, redressable injury (that is, the
plaintiff has Article III standing), federal courts are to
examine at least three additional factual elements
before allowing the suit to proceed. First, the court
must examine the relationship between the plaintiff
and the third party whose rights are asserted; second,
the court must consider the ability of the third party to

                     27
advance its own rights -- whether some obstacle
impedes the rightholder's own suit; and third, the
court must inquire into the impact on third party
interests -- whether the plaintiff and the third party
have consistent 

(citations omitted). We added that a court
may consider other "factors [that] may also be relevant to
the ultimate prudential consideration." 

The
nature of the claim asserted by the Drazin plaintiffs would
fall woefully short of these considerations even if it
comported with the more formal "case and controversy"
components of Article III standing. Indeed, whatever loss
the Drazin plaintiffs may assert here is reduced to such
insignificance (if not absurdity) by Ms. Alexander's tragic
loss that we can not help but wonder how the Drazin
plaintiffs can seriously challenge the district court's ruling
as to their lack of standing. Moreover, since we conclude
that there is no constitutional violation here, the Drazin
plaintiffs' marginal claim fails in any event.

IV. CONCLUSION

In concluding, we wish to stress that we do not intend
minimize the immensity of Ms. Alexander's tragic loss. Any
parent would appreciate that it is of monumental
proportion. However, our task is to apply those principles
that control and guide legal analysis and thereby determine
if the district court erred in dismissing the suit that was
brought under section 1983. Though we understand how a
parent would conclude that the interests at stake here are
fundamental, that is not the test we must apply.
"Fundamental interests" in constitutional adjudication are
not equivalent to general interests of "particular human or
societal significance." Price v. Cohen, 

, 93 (3d
Cir. 1983)(citing San Antonio Sch. Dist. v. Rodriguez, 

, 33 (1973). Rather, fundamental interests are those
which "have their source, explicitly or implicitly, in the
Constitution." 

457 U.S. at 217 n.15 (1982).

For the reasons set forth above we hold that Ms.
Alexander has failed to establish that New Jersey's
limitation on wrongful death and survival actions is

                     28
unconstitutional, and we therefore affirm the judgment of
the district court.

                   29
ALITO, Circuit Judge, concurring.

I am in almost complete agreement with the court's
opinion, but I write to comment briefly on two points. First,
I think that the court's suggestion that there could be
"human beings" who are not "constitutional persons" (Maj.
Op. 14-15) is unfortunate. I agree with the essential point
that the court is making: that the Supreme Court has held
that a fetus is not a "person" within the meaning of the
Fourteenth Amendment. However, the reference to
constitutional non-persons, taken out of context, is capable
of misuse.

Second, I think that our substantive due process inquiry
must be informed by history. It is therefore significant that
at the time of the adoption of the Fourteenth Amendment
and for many years thereafter, the right to recover for injury
to a stillborn child was not recognized. See Giardina v.
Bennett, 

, 143 (N.J. 1988); Smith v. Brennan,

, 498 (N.J. 1960).

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                    30