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. e du/thir dc ir c uit_1997/111Filed 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., individual ly and on behalf of all attorneys similarly situated; and Drazin & Warshaw, a professional corporation, individually a nd 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 t he State of New Jersey when this suit was instituted. Since that time, Deb orah T. Poritz resigned as Attorney General and was appointed Chie f Justice of the Supreme Court of New Jersey. Subsequently, Peter Ve rniero was appointed the Attorney General. Pursuant to Fed. R. App. Proc. 43(c), Peter Verniero is automatically substituted as a pa rty 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

2RONALD 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

3OPINION OF THE COURT

McKEE, Circuit Judge

Karen Alexander, Dennis Drazin, Esq., and the lawfi rm of Drazin and Warshaw, P.C., appeal from the distri ct court's dismissal of their complaint under Fed R. C iv. 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 caus e of action to the statutory beneficiaries unless a fetu s survives past birth. For the reasons that follow, we disagre e and will affirm the district court's dismissal of the compla int.

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 ch ild. 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, t he child
was stillborn.2

An autopsy was performed, and a death certificate w as issued showing the date of the child's birth as Jul y 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 a s

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2. In plaintiffs' motion for summary judgment state s that the child died
"while she was still in her mother's womb and befor e her actual birth, and was therefore declared `stillborn'." Joint Appe ndix, at 37. The hospital's records state that the child had "interp artum demise." Id.

3. In 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 th e medical malpractice
of the defendants.

4Administratrix Ad Prosequendum of the Estate of Kaylyn Elissa Alexander, Deceased, under the New Jersey Wr ongful Death Act, N.J.S.A. 2A:31-1, and as General Adminis trator 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 doctor s, nurses, and other health care personnel at Jersey S hore Medical Center had injured Ms. Alexander's baby whi le it was still in her mother's womb. Ms. Alexander reque sted that the Surrogate of Monmouth County issue Letters of Administration Ad Prosequendum and General Letters of Administration for the Estate of Kaylyn Elissa Alex ander. On October 18 and 31, 1994, the Surrogate denied th e 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 J ersey, Deborah T. Poritz, individually, and as Attorney Ge neral of the State of New Jersey,4 and the Surrogates of all twentyone counties in New Jersey as defendants. Alexander brought the action individually, on behalf of all m others whose fetuses had allegedly been injured in utero b y the tortious acts of a third party and who were later s tillborn, 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 Protectio n and
Due Process clauses of the Fourteenth Amendment. Essentially, the complaint alleged the New Jersey W rongful Death Act (as interpreted by the New Jersey Supreme Court
in Giardina v. Bennett , 545 A.2d 139 (N.J. 1988)), and the New Jersey Survival Action Act are unconstitutional because they deny recovery on behalf of stillborn f etuses. Plaintiffs requested, inter alia , that these statutes be declared unconstitutional, an order directing the s urrogate
to issue letters of administration in the estate of Kaylyn Elissa Alexander to Karen Alexander, and money dama ges.

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4. See n. 1, supra.

5Drazin and Drazin & Warshaw, P.C., individually and on

behalf of all attorneys and law firms (the "Drazin plaintiffs"), raised the same constitutional challe nge to the statues, and alleged that their constitutional righ ts are violated because they are precluded from bringing w rongful death and survival actions on behalf of potential c lients
whose children were stillborn because of the tortio us 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 S urrogates (the "County defendants") thereafter moved to join in the state defendants' 12(b)(6) motion. Plaintiffs then crossmoved for class certification and for summary judgm ent.

Subsequently, fifteen of the Surrogates executed Co nsent Orders of Judgment.5 Following argument, the distri ct court granted the State defendants' motion to dismiss. Consequently, plaintiffs' motions for class certifi cation and for summary judgment were denied. This appeal follo wed.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 , 986 F.2d 682, 685 (3d Cir. 1993). We must determine if plaintiff may be entitled to relief un der any reasonable reading of the pleadings, Holder v. City of
Allentown , 987 F.2d 188, 193 (3d Cir. 1993), assuming the truth of all the factual allegations in the complai nt. D.R. v.
Middle Bucks Area Vocational Technical Sch. , 972 F.2d 1364, 1367 (3d Cir. 1992). A court may dismiss a

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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 int erlocutory 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 d ismissal of their complaint as it relates to their claim for money da mages. See Notice of Appeal (Joint Appendix, at 148).

6complaint only if it is clear that no relief could be granted

under any set of facts that could be proven consist ent with the allegations. Hishon v. King & Spalding , 467 U.S. 69, 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 an alysis.

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

, 403 A.2d 9, 12 (N.J. Super. Ct. App. Div. 1979), mo dified on other grounds , 432 A.2d 857 (N.J. 1979). This cause of action was not recognized at common law and is pure ly a creature of statute. Schmoll v. Creecy , 254 A.2d 525, 527 (N.J. 1969). New Jersey's Wrongful Death Act provid es, 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 ha d not ensued, have entitled the person injured to maintai n an action for damages resulting from the injury, th e person who would have been liable in damages for th e injury if death had not ensued shall be liable in a n action for damages, notwithstanding the death of th e person injured and although the death was caused under circumstances amounting in law to a crime.

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

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7. Our standard of review on an appeal from a denia l of summary judgment is plenary, Waldorf v. Shuta , 896 F.2d 723, 728 (3d Cir. 1990),
and our review of class certification determination s is normally limited to
whether the district court abused its discretion. L usardi v. Xerox Corp.

, 975 F.2d 964, 973 (3d Cir. 1992). However, because we find that the district court's dismissal of the complaint under F ed. R. Civ. P. 12(b)(6) was proper, we need not address the propriety of it s denial of plaintiffs' motions for summary judgment and for class certific ation.

7An award of damages in a wrongful death action "is not

a matter of punishment for an errant defendant or o f providing for decedent's next of kin to a greater e xtent than decedent himself would have been able, but is rathe r a replacement for that which decedent would likely ha ve provided and no more." Hudgins v. Serrano , 453 A.2d 218, 224 (N.J. App. Div. 1982). The amount of recovery i s based upon the contributions, reduced to monetary terms, which the decedent might reasonably have been expected to make
to his or her survivors. Alfone , 402 A.2d at 12. Damages are awarded for pecuniary loss only, and not for in jury to feelings, mental suffering, or loss of society or companionship. Id. However, economic dependency is not the sole measure of the damages. Minor children may recover the pecuniary value of the loss of care, gu idance and advice of a parent during their minority. Id. In addition, the wrongful death statute permits the award of hos pital, medical and funeral expenses. N.J.S.A. 2A:31-5.

A wrongful death action is available when a child i s 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 chor es, or the loss of anticipated direct financial contrib utions 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 the y grow older, when it may be most needed and valuable

, as well as the advice and guidance that often accompanies it.

Green v. Bittner , 424 A.2d 210, 211 (N.J. 1980). However, damages for these additional items are confined to their pecuniary value, not including the value of the emo tional
loss. Id.

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

8the pecuniary value of the child's anticipated fina ncial

contributions, and the pecuniary value of the child 's companionship . . . as the parents grow older." Car ey v. Lovett , 622 A.2d 1279, 1291 (N.J. 1993)(citing Green , 424 A.2d at 211). However, "[t]he problem in evaluating the
economic value of a newborn's life is obvious. No o ne can know much, if anything, about the infant and his or her future economic worth. That difficulty, however, sh ould not preclude any award. Some award is appropriate even though the inferences, and estimate of damages, are based on uncertainties." Carey , 622 A.2d at 1291.

The particular aspect of New Jersey's wrongful deat h action that gives rise to the instant controversy a rises from the holding in Giardina v. Bennett , 545 A.2d 139 (N.J. 1988). There, the New Jersey Supreme Court held tha t the New Jersey Wrongful Death Act does not permit recov ery 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 tortiou s conduct. "[M]edical malpractice causing an infant stillbirth constitutes a tort against the parents, entailing t he direct infliction of injury, their emotional distress and mental suffering, for which they are entitled to recover compensatory damages." Id. at 139.

2. SURVIVAL ACTION.

At common law, a right to bring an action in trespa ss was personal and died with the person. Canino v. Ne w York News, Inc. , 475 A.2d 528, 529 (N.J. 1984). Accordingly, survival actions, like wrongful death actions, did not exist. Soden v. Trenton and Mercer County Trust Co. , 127 A. 558, 559 (N.J. 1925). Survival action statutes modify th e common law rule and provide that the personal right of action in trespass survives to the personal represe ntative of
the decedent's estate. Id. , at 559.

New Jersey's Survival Action statute provides as fo llows:

Executors and administrators may have an action fo r any trespass done to the person or property, real o r personal, of their testator or intestate against th e

9trespasser, and recover their damages as their test ator

or intestate would have had if he was living.

In those actions based upon the wrongful act, neglect, or default of another, where death resulte d 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 an d burial expenses in addition to damages accrued duri ng the lifetime of the deceased.

N.J.S.A. 2A:15-3. A survival action "gives executor s or administrators a right of action for tortious injur y or damage to the deceased or his property incurred pri or to
death." Alfone , 403 A.2d at 13. The major item of damages in a survival action (aside from funeral and burial expenses) is recovery for the decedent's pain and s uffering between the time of injury and the time of death. H owever, an award for pain and suffering is appropriate only for pain and suffering that is conscious. Id. Recovery is also permitted for "hedonic damages," i.e., loss of enjo yment of life. Eyoma v. Falco , 589 A.2d 653, 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 Giardin a and by the language of the survival action statute itself that the New Jersey Legislature did not intend to provide th e parents of unborn or stillborn fetuses with a statu tory 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 ass ume that New Jersey's survival action, like the wrongful dea th action,
is limited to situations where the fetus survives u ntil 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. § 198 3 on behalf of her stillborn child, Kaylyn Elissa, and a ll stillborn

10children and fetuses, alleging that the exclusion o f stillborn

children and fetuses from the coverage of New Jerse y's wrongful death and survival actions violates the Un ited States Constitution. 42 U.S.C. § 1983 provides in r elevant
part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any Sta te . . ., subjects, or causes to be subjected, any cit izen of the United States or other person within the jurisdiction thereof to the deprivation of any righ ts, privileges, or immunities secured by the Constituti on and laws, shall be liable to the party injured in a ny action at law, suit in equity, or other proper proc eeding
for redress.

42 U.S.C. § 1983. Section 1983 "is not itself a sou rce of substantive rights, but a method for vindicating fe deral rights elsewhere conferred by those parts of the Un ited
States Constitution and federal statutes that it de scribes."
Baker v. McCollan , 443 U.S. 137, 144 n.3 (1979).

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

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

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

11Supreme Court has already decided that difficult qu estion

for us in Roe v. Wade , 410 U.S. 113, 158 (1973). There, the Court expressly held that "the word `person,' as us ed in the
Fourteenth Amendment does not include the unborn." The Court held that "person" has "application only post natally."
Id. at 157. That constitutional principle was more rec ently
re-affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 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.' " Id. at 913 (Stevens, J., concurring in part and dissenting in part). This principle "remains a fundamental premise of ou r constitutional law governing reproductive autonomy. " Id. at 914. Since the unborn are not persons within the me aning of the Fourteenth Amendment, no claim alleging an e qual protection violation can be brought on behalf of th e stillborn child.9

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

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9. Because the unborn are not persons within the me aning of the Fourteenth Amendment, it follows that the unborn ar e not encompassed within the meaning of the term "person" or"citizen" for purposes of 42 U.S.C. § 1983. See Reed v. Gardner , 986 F.2d 1122, 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 gestati on 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 relations hips with their mothers carrying them. This relationship between th ese two separate, complete individual human beings is in ac tual existence throughout pregnancy. As a matter of fact, a child can experience pain beginning at eight weeks after conception up t o the time of actual birth. As a matter of fact, Karen F. Alexand er'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.

12established as a matter of fact, we must look to co ntrolling

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 th at unborn "human being" is included within the meaning of "person" contained in the Fourteenth Amendment. Tha t legal question was resolved over twenty-four years ago when the Supreme Court decided Roe . In fact, the Court there specifically differentiated between the factu al inquiry into when life begins, and the legal issue of the s cope of the
Fourteenth Amendment. The Court stated:

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

410 U.S. at 159. Thus, it is immaterial that the co mplaint 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 advance s 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 ke ep 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 fr om 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 believ e to be an essential underpinning of the New Jersey Supreme Co urt's
decision in Smith v. Brennan , 157 A.2d 497 (N.J. 1960),
does not make the constitutional claim raised on be half of

13the 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 co urt explained its holding by noting that "[m]edical aut horities have long recognized that a child is in existence f rom the moment of conception, and not merely a part of its mother's body."12 Id. at 502.

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

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11. Smith v. Brennan overruled Stemmer v. Kline , 26 A.2d 489 (N.J. 1942), which did not allow a surviving a child a ca use of action in tort for prenatal injuries. Stemmer v. Kline declined to recognize a cause of action for prenatal injury based, in large part, up on Dietrich v. Inhabitants of Northampton , 138 Mass. 14, 52 Am.Rep. 242 (Sup. Jud. Ct. 1884), which was a wrongful death case where th e child was apparently stillborn. Dietrich held that Massachusetts' wrongful death statute was inapplicable to a fetus, based on its v iew that a child is part of its mother before birth and does not have a sepa rate existence or personality.

12. Perhaps realizing the import of its holding tha t a child is in existence from the moment of conception, the New Jersey Supre me 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 whic h if undisturbed will produce what every one will concede to be a pe rson in being. If in the meanwhile those processes can be disrupted r esulting in harm to the child when born, it is immaterial wheth er before birth the child is considered a person in being. And rega rdless of analogies to other areas of the law, justice requir es that the principle be recognized that a child has a legal ri ght to begin life with a sound mind and body. If the wrongful conduct of another interferes with that right, and it can be establish ed by competent proof that there is a causal connection between the wrongful interference and the harm suffered by the child whe n born, damages for such harm should be recoverable by the child.

Smith , 157 A.2d at 503.

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 U nited States' Supreme Court. Quite simply, a state cannot "declare a fetus a person" and thereby add "new per sons 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 principl es were implicated in that court's analysis.

The short answer to plaintiffs' argument is that th e issue is not whether the unborn are human beings, but whe ther the unborn are constitutional persons.13 It is bey ond question that medical and scientific knowledge has advanced significantly since Roe . However, even with those advances, the Supreme Court has consistently adhere d to

Roe 's holding that the unborn are not persons under th e Fourteenth Amendment. See Planned Parenthood of Southeastern Pennsylvania , 505 U.S. at 855-61. Therefore, plaintiffs' argument that Roe was based on imperfect
science is to no avail.14

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

14. Interestingly, Justice O'Connor, writing for th e 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 t o a point somewhat earlier. But these facts go only to the sc heme of time limits on the realization of competing interests, a nd the divergences from the factual premises of 1973 have no bearing o n the validity of

Roe 's central holding, that viability marks the earlie st point at which
the State's interest in fetal life is constitutiona lly adequate to justify a legislative ban on nontherapeutic abortions.

Planned Parenthood , 505 U.S. at 860 (citations omitted).

15Accordingly, the district court properly granted a 12(b)(6)

dismissal of the equal protection claim raised on b ehalf 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 stillbor n child,
Karen Alexander asserts a claim on her own behalf a nd 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 th e United States Constitution and that the challenged statutes violate both the Due Process and Equal Protection C lauses
of the Fourteenth Amendment.

1. THE DUE PROCESS CLAIM.

The Due Process Clause not only requires that the government follow appropriate procedures when it se eks 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 , 474 U.S. 327, 331 (1986). Thus, the Due Process Clause has a substantive component whic h guarantees that "all fundamental rights comprised w ithin the term liberty are protected by the Federal Const itution from invasion by the States." Planned Parenthood of Southeastern Pennsylvania , 505 U.S. at 847 (quoting Whitney v. California , 274 U.S. 357, 373 (1927)(Brandeis, J., concurring)).

Although the "outer limits of the substantive spher e of liberty which the Fourteenth Amendment protects" ha ve not been defined, Id. , at 848, 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 c ontract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a hom e and bring up children, to worship God according to the

16dictates of [their] own conscience[s], and generall y to

enjoy those privileges long recognized . . . as ess ential to the orderly pursuit of happiness by free men.

Board of Regents v. Roth , 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska , 262 U.S. 390, 399 (1923)).

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

, 505 U.S. at 847. The result is a right of "personal privacy, or a guarantee of certain areas or zones of privacy [.]" Roe

, 410 U.S. at 152. The rights included within that zo ne are deemed "fundamental" and include "activities relati ng to marriage", "procreation", "contraception", "family relationships" and "child rearing and education." I d. at 152- 53. They therefore involve "the most intimate and p ersonal choices" a person can make in his or her lifetime. They include "choices central to the liberty protected b y the
Fourteenth Amendment." Planned Parenthood of Southeastern Pennsylvania , 505 U.S. at 851.

"The first step in any substantive due process revi ew is to
determine the standard of review." Sammon v. New Je rsey Bd. of Med. Exam's , 66 F.3d 639, 643-44 (3d Cir. 1995). Ms. Alexander argues that we must give these New Je rsey statutes strict scrutiny because they impact upon a woman's "relationship" with an unborn fetus, and th at relationship is within this protected zone of priva cy included in the substantive component of the Due Pr ocess 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 l egislative enactments must be narrowly drawn to express only t he legitimate state interests at stake. Roe , 410 U.S. at 154 (citations omitted). Therefore, state limitations o n a fundamental right such as the right of privacy are permissible only if they survive strict constitutio nal scrutiny. Planned Parenthood , 505 U.S. at 929 (Blackmun, J., dissenting)(citing Griswold v. Connecticut , 381 U.S. 479, 485 (1965)). However, where fundamental rights or interests are not implicated or infringed, state st atutes are

17reviewed under the rational basis test. That is "th e test

traditionally applied in the area of social or econ omic legislation." Roe , 410 U.S. at 173 (Rehnquist, J., dissenting)(citing Williamson v. Lee Optical Co. , 348 U.S. 483, 491 (1955)). Under rational basis review, "a s tatute withstands a substantive due process challenge if t he state identifies a legitimate state interest that the leg islature could rationally conclude was served by the statute ."
Sammon , 66 F.3d at 645.

Ms. Alexander argues that her relationship with her unborn child during pregnancy is itself a fundament al interest, and that these statutes should receive st rict 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 statute s at
issue here do not affect Ms. Alexander's relationsh ip with her unborn child. A mother's relationship with her fetus is exactly the same whether or not she can bring a wro ngful
death or survivor action. It is not the relationshi p that is affected here, it is the ability to recover for the loss of that relationship.

Neither the Wrongful Death Act nor the Survival Act ion Act interfered with any decision Karen Alexander ma de or might have made about her stillborn child. It is im possible for us to imagine that any such decision would be t he least bit influenced by whether or not a mother could bri ng a wrongful death or survival action to recover damage s for
the loss of a fetus. Ms. Alexander's assertion of a constitutionally impermissible interference with a fundamental interest is grounded in her argument th at 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 whi ch injures and kills others, and the promotion of caut ion to protect health and life." Appellants' Brief at 4. T he denial of the tort law's protection is alleged to be the resu lting 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 su rvival

18statutes 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 reco ver for emotional distress and any injury to herself when m edical malpractice causes the stillbirth of a baby.

The gravity of such negligence, the foreseeability of parental suffering, and the genuineness of injury a nd loss present a compelling case for recognition of t he 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.

Giardina , 545 A.2d at 141-42. 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 [i n tort] we protect the interests affected by the tortious cond uct resulting in the death of an infant before birth." Id . at 139. 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 , 391 U.S. 68 (1968), its companion case, Glona v.
American Guar. & Liab. Ins. Co. , 391 U.S. 73 (1968), and
Weber v. Aetna Cas. and Sur. Co. , 406 U.S. 164 (1972). However, those cases addressed the constitutionalit y of legislative enactments that discriminated against p ersons on the basis of having been born out of wedlock. Th ey did not implicate substantive due process. Instead, the y were equal protection challenges to statutory classifica tions.

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15. We do not mean to suggest that the Fourteenth A mendment requires a state to provide a tort remedy for prenatal injur ies. Indeed, that assertion is endemic in Ms. Alexander's attempt to fashion a Due Process right from New Jersey's purported failure t o protect her fetus from the negligence of health care providers. Rathe r, we mention the aspects of tort law that serve to protect her own b odily integrity, and the health of the fetus, to illustrate the weakness in her argument. See Parham v. Hughes , 441 U.S. 347 (1979), infra

.

19Levy

invalidated the provisions of a state statute that excluded illegitimate children from the class of ch ildren entitled to recover for a parent's death under Loui siana'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 compensatio n statute which excluded unacknowledged illegitimate children from recovering for the death of their wag e-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," Levy , 391 U.S. at 71. 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 pare nt and child to reverse the burdens imposed by illegitimac y." 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 a rgues. In Parham v. Hughes , the Court explained the basis of Levy and its progeny.

The basic rationale of these decisions is that it i s unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child wh o is in no way responsible for his situation and is unab le to change it.

441 U.S. at 352.16

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

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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 r aised here.

20prescribed by statute, could file suit. The plainti ff was the

father of an illegitimate child whom he had not leg itimated. The father had, however, signed the child's birth c ertificate and had contributed to the child's support. When th e 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 beca use plaintiff had not legitimated the child, but the tr ial court denied the motion on the grounds that the statute v iolated both the Equal Protection and Due Process Clauses. On appeal, the Georgia Supreme Court reversed, and the Supreme Court thereafter accepted the appeal from t hat 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." Id. at 349. The Court refused to apply the heightened scrutiny it had applied in Web er , and upheld the statute using the "rational means" test, and the concomitant presumption of validity. The Court reas oned
that the classification established under the statu te was a rational means of limiting tort claims, as well as false claims of paternity. The Court focused primarily up on the classification, and did not base its analysis upon whether the statute deprived plaintiff of a fundamental rig ht 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." Id. at 358. Ms. Alexander's Equal Protection and Due Pr ocess claims must fail for the same reason. The statutes do not interfere with her relationship with her fetus as s he claims, nor do they interfere with a fundamental right.

Parents do, of course, have a fundamental liberty i nterest in the care and custody of their children, Santosky v. Kramer , 455 U.S. 745, 753 (1982); see also Lehr v.
Robertson , 463 U.S. 248, 258 (1983)("[T]he relationship of love and duty in a recognized family unit is an int erest in liberty entitled to constitutional protection."). M oreover, there is an intense emotional bond consisting of th e great joy and hope that naturally develops between a moth er and the child she is carrying in her womb. Indeed, it i s the awareness of the reality and intensity of the mothe r-fetal

21bond which apparently led the New Jersey Supreme Co urt

to create a parental right of recovery for the emot ional distress suffered by the parents when medical malpr actice
causes a stillbirth. Giardina , 545 A.2d at 140.

Karen Alexander's actual complaint is with the tort remedy that New Jersey has provided. She would pref er to be able to institute a wrongful death and survival action, either in lieu of, or in addition to, the tort reme dy first recognized in Giardina v. Bennett .17 Since there are rather
severe limitations on the emotional distress that o ne 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 neg ligence and causation are shown. However, the fact that a mothe r may not be able to prove the degree of emotional distre ss 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 protectio n of New Jersey's tort law.

Since New Jersey has not infringed upon any relatio nship 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 i s a rational means of achieving a legitimate state interest. Whe n subjecting a state statute to rational basis review ,"a court . . . is not entitled to second guess the legislatu re on the factual assumptions or policy considerations underl ying the
statute." Sammon , 66 F.3d at 645. The only inquiry permitted "is whether the legislature rationally mi ght have believed that the predicted reaction would occur or that the
desired end would be served." Id. It is up to the person challenging the statute to "convince the court that the legislative facts on which the classification[of th e statute] is apparently based could not reasonably be conceiv ed as

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17. To prove a claim for emotional distress caused by the tortiouslycaused death of a fetus, "the mother must prove tha t she suffered emotional distress so severe that it resulted in ph ysical manifestations or that it destroyed her basic emotional security." Ca rey v. Lovett , 622 A.2d 1279, 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 roo m." Id.

22true by the governmental decisionmaker." Id. at 645-46

(quoting Vance v. Bradley , 440 U.S. 93, 111 (1979)). A statute "withstands a substantive due process chall enge if the state identifies a legitimate state interest th at the legislature rationally could conclude was served by the
statute." Id. at 645.

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 wr ongful
death and survival action is instituted have been b orn alive is rationally related to that interest. New Jersey has chosen to draw a bright line that eliminates the nearly im possible problems of proof inherent in such actions when inj ury to
a fetus is at issue. Absent the limitation in these statutes it would be difficult, if not impossible, to prohib it a wrongful death or survival action no matter how ear ly the fetus was in its development. This would mean that one could recover if it could be established that a zyg ote would have developed had not an alleged tortfeasor injure d a developing fertilized egg seconds after the union o f sperm and egg. Although a state could permit recovery for an injury to that which would later develop into a fet us, it is certainly not required to do so under the Due Proce ss or Equal Protection Clauses. Limiting such actions in the manner that New Jersey has chosen is both reasonabl e and practical. Ms. Alexander argues that including stil lborn children and fetuses within the coverage of wrongfu l death and survival actions would not harm New Jersey's legitimate interest in setting limits on tort recov ery. She may be correct, but that is not for us to determine . Her disagreement is with the legislative policy decisio n about where the line should be drawn and "those disputes are not legally relevant under substantive due process jurisprudence." Id. at 647.

2. THE EQUAL PROTECTION CLAIM.

The Equal Protection Clause of the Fourteenth Amendment "announces a fundamental principle: the S tate must govern impartially," New York Transit Authorit y v. Beazer , 440 U.S. 568, 587 (1979), and "directs that `all persons similarly circumstanced shall be treated al ike.' "

23Plyler v. Doe , 457 U.S. 202, 216 (1982)(quoting F.S. Royster

Guano Co. v. Virginia , 253 U.S. 412, 415 (1920)). Therefore, "[g]eneral rules that apply evenhandedly to all per sons within the jurisdiction unquestionably comply" with the Equal Protection Clause. Beazer , 440 U.S. at 587. Only when a state "adopts a rule that has a special impa ct on less than all persons subject to its jurisdiction" does a question arise as to whether the equal protection c lause is
violated. Id. at 587-88.

However, the clause does not require that things wh ich are different in fact be treated in law as though t hey are the same. Plyler , 457 U.S. at 216. "The initial discretion to
determine what is `different' and what is `the same ' resides in the legislatures of the States." Id. Accordingly, "the Fourteenth Amendment permits the States a wide scop e of discretion in enacting laws which affect some group s of citizens differently than others." McGowan v. Maryl and , 366 U.S. 420, 425 (1961). Therefore, "a statutory class ification that neither proceeds along suspect lines nor infri nges fundamental constitutional rights must be upheld ag ainst equal protection challenge if there is any reasonab ly conceivable state of facts that could provide a rat ional basis
for the classification." Federal Communications Com m. v. Beach , 508 U.S. 307, 313 (1993).18

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

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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 sat ellite master
antenna and television facilities. Because the Fift h Amendment imposes on the federal government the same standard require d of state legislation by the Equal Protection Clause of the Fourteenth Am endment, Schweiker
v. Wilson , 450 U.S. 221, 226 n. 6 (1981), the Due Process Cl ause of the Fifth Amendment has an "implied equal protection gu arantee." Beach

, 508 U.S. at 312.

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

24first class consists of all mothers whose injured f etuses are born but die as a result of the prenatal injury. Th e second
class -- the Karen Alexander class -- consists of a ll mothers whose fetuses are tortiously injured in ute ro and
die in the womb or are stillborn as a result. New J ersey law allows a wrongful death and survival action to moth ers in the first class, but not to those in the second cla ss. That much is not disputed; however, Ms. Alexander's argu ment fails because she also argues that there is no diff erence between the mothers in those two classes. She asser ts that
mothers in her class sustained "the same loss as ot her mothers to whom New Jersey gives the claim." Appell ants' 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 Equ al Protection jurisprudence.

Ms. Alexander's Equal Protection claim parallels he r 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. Howeve r, as discussed earlier, Karen Alexander has not demonstr ated how these statutes affect her relationship with her unborn child. Therefore, her own Equal Protection challeng e is also entitled only to "rational basis" scrutiny. The rat ional basis standard is a "relatively relaxed standard reflecti ng the Court's awareness that the drawing of lines that cr eate distinctions is peculiarly a legislative task and a n unavoidable one." Massachusetts Bd. of Retirement v

. Murgia , 427 U.S. 307, 314 (1976). Although New Jersey
could have chosen to afford all mothers whose fetus es are injured a cause of action under the challenged stat ues, the wisdom of not doing so is not before us. It is the legality of

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subclass of the second class and consists of pregna nt 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 o f the second class and is the Karen Alexander class composed of all pregna nt mothers whose children sustain a prenatal injury and are stillbor n. See Appellants' Brief, at 16-17. However, we do not think that deli neating four classes is necessary for the purposes of this equal protect ion argument. It is the third and fourth classes which are significant here

.

25not doing so that we must decide, and we do not thi nk the

distinction that the state has drawn is illegal.

[R]ational basis review in equal protection analys is is not a license for courts to judge the wisdom, fairn ess, or logic of legislative choices. Nor does it author ize the judiciary [to] sit as a superlegislature to judge t he 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 involvi ng fundamental rights nor proceeding along suspect lin es is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protec tion 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 articula te at any time the purpose or rationale supporting its classification. Instead, a classification must be u pheld against equal protection challenge if there is any reasonably conceivable state of facts that could pr ovide
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 whi ch might support it, whether or not the basis has a foundation in the record. Finally, courts are compe lled 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 f ail
rational-basis review because it is not made with mathematical nicety or because in practice it resul ts in some inequality. The problems of government are practical ones and may justify, if they do not requ ire, rough accommodations -- illogical, it may be, and
unscientific.

Heller v. Doe , 509 U.S. 312, 319-21 (1993). The "standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation." Id. at 321. Only when the classification "rests on grounds wholly ir relevant

26to the achievement of the State's objectives" does a statute

fail rational basis review. Id. at 323.

Apparently, there is no legislative history to assi st us in determining if the challenged statutes are rational ly related to a legitimate state interest. However, the assume d 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 earl ier, the New Jersey legislature was doing nothing more t han setting limits on tort recovery in those cases when a person is killed by the tortious conduct of another. Accor dingly, 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 la w firm (the Drazin plaintiffs) also challenge these s tatutes. 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 o ther potential clients whose children were stillborn bec ause of the wrongful acts of third parties. We are aware of no constitutional provision that creates a right in at torneys to bring lawsuits under the circumstances involved her e. Moreover, the district court quite properly conclud ed that Ms. Alexander is the party best suited to challenge these statutes and held that the Drazin plaintiffs lack s tanding.
See Amato v. Wilentz , 952 F.2d 752 (3d Cir. 1991).

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

Where a plaintiff asserting third party standing ha s 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 cou rt must examine the relationship between the plaintiff and the third party whose rights are asserted; seco nd, the court must consider the ability of the third pa rty to

27advance 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 pa rty
have consistent interests.

952 F.2d at 749 (citations omitted). We added that a court may consider other "factors [that] may also be rele vant to the ultimate prudential consideration." Id. at 750. The nature of the claim asserted by the Drazin plaintif fs would fall woefully short of these considerations even if it comported with the more formal "case and controvers y" components of Article III standing. Indeed, whateve r 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 cou rt's ruling as to their lack of standing. Moreover, since we co nclude 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 int end minimize the immensity of Ms. Alexander's tragic lo ss. Any parent would appreciate that it is of monumental proportion. However, our task is to apply those pri nciples that control and guide legal analysis and thereby d etermine if the district court erred in dismissing the suit that was brought under section 1983. Though we understand ho w a parent would conclude that the interests at stake h ere are fundamental, that is not the test we must apply. "Fundamental interests" in constitutional adjudicat ion are not equivalent to general interests of "particular human or societal significance." Price v. Cohen , 715 F.2d 87, 93 (3d Cir. 1983)(citing San Antonio Sch. Dist. v. Rodrigu ez , 411 U.S. 1, 33 (1973). Rather, fundamental interests ar e those which "have their source, explicitly or implicitly, in the
Constitution." Id. (citing Plyler , 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 i s

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

29ALITO, Circuit Judge , concurring.

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

Second, I think that our substantive due process in quiry must be informed by history. It is therefore signif icant that at the time of the adoption of the Fourteenth Amend ment and for many years thereafter, the right to recover for injury to a stillborn child was not recognized. See Giardi na v. Bennett , 545 A.2d 139, 143 (N.J. 1988); Smith v. Brennan

, 157 A.2d 497, 498 (N.J. 1960).

A True Copy:

Teste:

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

30