Judge Samuel Alito and the Stillborn Fetus Case     11/7/2005
By Jan LaRue, Chief Counsel

Judge Alito reminded his colleagues that human beings have constitutional protection.

The facts in the case of Alexander v. Whitman (3rd Cir. 1997) are described by the court as follows:

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.
…

In plaintiffs’ motion for summary judgment [it] states that the child died “while she was still in her mother’s womb and before her actual birth, and was therefore declared ‘stillborn.’ … The hospital's records state that the child had ‘interpartum demise.’”
...

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.”

In addition to Alexander’s lawsuit in New Jersey state court, she and others filed a federal civil rights class action complaint against the governor of New Jersey and others, alleging that New Jersey’s Wrongful Death Act and its Survival Action Act violated the Equal Protection and Due Process Clauses of the 14th Amendment to the U.S. Constitution. The plaintiffs claimed that the laws wrongly denied a right to bring a wrongful death claim by beneficiaries of a fetus injured in the womb unless the fetus survived past birth.

The district court dismissed the lawsuit and the plaintiffs appealed to the U.S. Court of Appeals for the Third Circuit. The court held that plaintiffs had no cause of action on behalf of stillborn fetuses under the Equal Protection Clause because fetuses are not constitutional “persons” afforded protection. The court also held that there is no due process cause of action for plaintiffs because the state tort laws did not interfere with a protected relationship or with a fundamental right, and that the state had a “rational basis” for its legislation. Finally, the court held that the state laws did not unconstitutionally create a class of mothers, those of stillborn infants, separate from other mothers and then deny them equal protection of the laws.

Judge Alito filed a concurring opinion consisting of two paragraphs to explain that although he agreed with the majority, he disagreed with their suggestion that there are “human beings who are not constitutional persons”:

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” 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.

It should be noted that Judge Alito said he agreed with what the majority said about what the Supreme Court has held. He didn’t say that he agreed with the Supreme Court. As a judge he cannot lie about or deny what another court has held.

More importantly, Alito emphasized that the Court’s opinion in Roe v. Wade did not state that there are human beings who are not persons protected by the Constitution. The issue in Roe was personhood under the 14th Amendment, which is a legal concept.

The Supreme Court has included individuals, corporations, associations and other entities as “persons” protected under the 14th Amendment that have a right to sue and be sued for damages. The Roe Court refused to include the unborn as “persons.”

Two years prior to Roe, Justice Harry Blackmun, author of Roe, concurred in Justice William O. Douglas’ dissenting opinion in Sierra Club v. Morton, arguing that legal personhood should be conferred on a “valley, an alpine meadow, a river or a lake” just as it had been bestowed on ships and corporations.

The 3rd Circuit majority in Alexander was reckless with its terminology when it substituted human beings for “persons.” Judge Alito was rightly concerned about its potential “misuse.”

Judge Alito’s next point is a historically accurate statement. Although a fetus injured in the womb who was then born alive could recover damages for the injury, beneficiaries of a stillborn fetus could not bring an action for damages under a wrongful death claim. Alito wrote:

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.

Judge Alito’s concurrence reflects his deference as a lower court judge to Supreme Court precedent, however, that shouldn’t be construed as his personal agreement with the Court. His opinion also demonstrates his commitment to textualism, originalism and judicial restraint.

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