1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Alexander v. Whitman" (1997). 1997 Decisions. Paper 111.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/111
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." 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 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 twentyone 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, 545 A.2d 139 (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. 1, supra.

 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 crossmoved 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, 986 F.2d 682, 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, 987 F.2d 188, 193 (3d Cir. 1993), assuming the 

truth of all the factual allegations in the complaint. D.R. v.

Middle Bucks Area Vocational Technical Sch., 972 F.2d 

1364, 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, 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 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, 

403 A.2d 9, 12 (N.J. Super. Ct. App. Div. 1979), modified

on other grounds, 432 A.2d 857 (N.J. 1979). This cause of 

action was not recognized at common law and is purely a 

creature of statute. Schmoll v. Creecy, 254 A.2d 525, 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, 896 F.2d 723, 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., 

975 F.2d 964, 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, 453 A.2d 218, 

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. Alfone, 402 A.2d at 12. Damages 

are awarded for pecuniary loss only, and not for injury 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, guidance 

and advice of a parent during their minority. Id. In addition, 

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, 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 emotional 

loss. Id.

Damages for 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, 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 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." Carey, 622 A.2d at 1291. 

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, 545 A.2d 139 (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." Id. at 139. 

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., 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 the 

common law rule and provide that the personal right of 

action in trespass survives to the personal representative of 

the decedent's estate. Id., at 559. 

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." 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 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. Id. Recovery is also 

permitted for "hedonic damages," i.e., loss of enjoyment 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 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, 443 U.S. 137, 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, 410 U.S. 113, 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." 

Id. at 157. That constitutional principle was more recently 

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 our 

constitutional law governing reproductive autonomy." Id. at 

914. 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, 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 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 answer. 

410 U.S. at 159. 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, 157 A.2d 497 (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 Id. at 502. 

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, 26 A.2d 489 (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, 138 Mass. 14, 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. 

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 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 Pennsylvania, 505 U.S. at 855-61. 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 Parenthood, 505 U.S. at 860 (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, 474 U.S. 327, 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 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 sphere of 

liberty which the Fourteenth Amendment protects" have 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 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, 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 may not 

enter." Planned Parenthood of Southeastern Pennsylvania, 

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 zone are 

deemed "fundamental" and include "activities relating to 

marriage", "procreation", "contraception", "family 

relationships" and "child rearing and education." Id. at 152- 

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 Pennsylvania, 505 U.S. at 851. 

"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, 66 F.3d 639, 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. Roe, 410 U.S. at 154 

(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 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 statutes are 

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

traditionally applied in the area of social or economic 

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 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." 

Sammon, 66 F.3d at 645. 

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. 

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 [in tort] we 

protect the interests affected by the tortious conduct 

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 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, 441 U.S. 347 (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," 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 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 it. 

441 U.S. at 352.16 

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." Id. at 349. 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." Id.

at 358. 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, 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 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. Giardina, 545 A.2d at 140. 

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." Sammon, 66 F.3d at 645. 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." Id. It is 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 tortiouslycaused 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, 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 room." Id.

 22 
true 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 challenge if 

the state identifies a legitimate state interest that 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 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." Id. at 647. 

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, 440 U.S. 568, 587 (1979), and "directs that `all 

persons similarly circumstanced shall be treated alike.' " 

 23 
Plyler 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 persons 

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 impact on 

less than all persons subject to its jurisdiction" does a 

question arise as to whether the equal protection clause is 

violated. Id. at 587-88. 

However, the clause does not require that things which 

are different in fact be treated in law as though they 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 scope of 

discretion in enacting laws which affect some groups of 

citizens differently than others." McGowan v. Maryland, 366 

U.S. 420, 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, 508 U.S. 307, 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, 450 U.S. 221, 226 n. 6 (1981), the Due Process Clause of the 

Fifth Amendment has an "implied equal protection guarantee." 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 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, 427 U.S. 307, 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, 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 irrelevant 

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

fail rational basis review. Id. at 323. 

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, 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 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 interests. 

952 F.2d at 749 (citations omitted). We added that a court 

may consider other "factors [that] may also be relevant to 

the ultimate prudential consideration." Id. at 750. 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, 715 F.2d 87, 93 (3d 

Cir. 1983)(citing San Antonio Sch. Dist. v. Rodriguez, 411 

U.S. 1, 33 (1973). Rather, fundamental interests are 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 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, 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