In New Jersey Wrongful Death Suit Alito Agrees With Roe v. Wade That Unborn Child Not “Constitutionally” A Person
ALITO TELLS Karen Alexander sorry, but your dead, unborn baby is not ‘Constitutionally’ a person because Roe v. Wade says soOn 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 unborn baby appeared normal and healthy. Tragically, however, the child was stillborn.
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 individually and in her capacity as 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, and the Surrogates of all twenty- one counties in New Jersey as defendants.
Alexander brought the action individually, on behalf of all mothers whose fetuses had allegedly been injured in utero by the tortious acts of a third party and who were later stillborn, on behalf of her own stillborn child, and on behalf of all stillborn children who were similarly situated. The complaint alleged violations of the Equal Protection and Due Process clauses of the Fourteenth Amendment. Essentially, the complaint alleged the New Jersey Wrongful Death Act (as interpreted by the New Jersey Supreme Court in Giardina v. Bennett, 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.
Karen F. Alexander lost this case. Here’s part of the ruling with which Judge Alito agreed: “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 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” (emphasis mine).
The Court held that “person” has “application only postnatally.” That constitutional principle was more recently re-affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 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.’ ” (Stevens, J., concurring in part and dissenting in part).
“This principle “remains a fundamental premise of our constitutional law governing reproductive autonomy.” Since the unborn are not persons within the meaning of the Fourteenth Amendment, no claim alleging an equal protection violation can be brought on behalf of the stillborn child…
Noting that “controlling law” must be looked at as they analyzed this case, it was said: “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” (emphasis mine.)
“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.’ “Thus, it is immaterial that the complaint pleads that a stillborn child is a human being from conception (emphasis mine).
“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” (emphasis mine)…
“The plaintiffs [argued] 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 “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…
“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. 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.”
In a separate, concurring opinion, under his name, Judge Alito said: “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” (emphasis mine.) 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).”
