An Open Question in Utah's Open Courts Jurisprudence: The Utah Wrongful Life Act and Wood V. University of Utah Medical Center

I. INTRODUCTION The sensitive issues and deeply held beliefs involved in this country's ongoing abortion debate have generated intense controversy. Although the U.S. Supreme Court1 or Congress2 have occasionally entered the fray, regulation of the specifics regarding abortion is often left to individual states. In particular, states have been able to determine whether parents can sue physicians for medical advice and procedures related to birth and abortion. In the wake of various state court decisions allowing such suits,3 and a decade after the U.S. Supreme Court's controversial decision in Roe v. Wade, the Utah legislature passed the Utah Wrongful Life Act4 (the "Wrongful Life Act" or the "Act"), prohibiting suits against physicians for such advice or procedures.5 For twenty years, the Act garnered only passing mention in Utah Supreme Court cases.6 But in 2002, the plaintiffs in Wood v. University of Utah Medical Center7 challenged the Act as unconstitutional, thus ushering it into Utah's jurisprudential limelight. This Note analyzes the Wood decision and the constitutionality of the Wrongful Life Act. In doing so, it is intended neither to add to the extensive commentary on the constitutionality of abortion, nor to make normative arguments for or against the practice. Rather, it focuses both on the effect of the Wood decision and the constitutionality of the Act as challenged under the "open courts" clause of Utah's constitution. This Note first argues that the alignment of the Justices in Wood left at least part of the constitutional question unanswered. Next, it suggests an alternative to the conflicting standards of review used both in Wood and in past Utah decisions. Finally, it argues that, regardless of the standard of review used, the Act should be upheld as constitutional. Part II of this Note gives background information on the Wrongful Life Act and the Utah Constitution's "open courts" clause. Part III describes the facts, procedural history, and holding of Wood. Part IV analyzes the Wood opinions: Part IV.A recommends a standard of review in open courts cases, and Part IV.B asserts that the Wrongful Life Act was properly upheld as constitutional. Part V offers a brief conclusion. II. BACKGROUND A. The Utah Wrongful Life Act On February 28, 1983, the Utah Legislature passed the Wrongful Life Act.8 It came in response to court decisions in other states allowing recovery for wrongful life9 and wrongful birth10 and was intended to prevent such suits.11 Utah was one of the first states to enact a law prohibiting actions for wrongful birth, though several other states have enacted similar laws.12 The first section of Utah's statute declares that it is the public policy of Utah "to encourage all persons to respect the right to life of all other persons, regardless of age, development, condition or dependency, including all persons with a disability and all unborn persons."13 Based on that policy, section 78-11-24 states that "[a] cause of action shall not arise, and damages shall not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted."14 Although there was some speculation at the time of enactment that the Act may violate a woman's right to an abortion,15 no such claim made it to the Utah Supreme Court for twenty years. In the two cases that mentioned the statute, it either was found to not apply to the plaintiffs claim16 or was not considered because the plaintiffs' claim was otherwise barred.17 In Wood v. University of Utah Medical Center,18 however, the court directly confronted a constitutional challenge to the Act. B. The Open Courts Clause of the Utah Constitution One ground for challenging the Act as unconstitutional was a provision of the Utah Constitution. Article I, section 11-the "open courts" clause19-provides the following: All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party. …