applying former Rule 341 and holding that an order sustaining preliminary objections to complaint was final and appealable even though the order did not dismiss the complaint because the order effectively terminated the proceedings
How later courts described this case
- applying former Rule 341 and holding that an order sustaining preliminary objections to complaint was final and appealable even though the order did not dismiss the complaint because the order effectively terminated the proceedings
- Concurring Opinion by Wieand, J.
Written by the judges who cited it.
The opinion
WIEAND, Judge,
concurring:
I concur in the result. In my judgment, 42 Pa.C.S. § 8305 is rationally designed to meet a legitimate state interest and, therefore, is constitutional. In this respect, I would adopt the reasoning of the Honorable David S. Cer *578 cone who, in entering judgment on the pleadings in favor of the physician-defendant, wrote as follows:
“We believe that our legislature unquestionably had a rational basis for enacting section 8305. Senator Rocks provided the following viewpoint during debate on this legislation:
‘this is the intent of what the wrongful birth and wrongful life legislation is about to stop a court engendered policy which views the birth of a child, be that child handicapped or otherwise, as a damaging event for which someone should be punished in order to prevent this quality of life ethic from becoming so pervasive that a handicapped child is routinely considered better off dead and of less value than what we would call a ‘normal child’ and to prevent the practice of medicine especially obstetrics and gynecology, from becoming coerced into accepting eugenic abortion as a condition for avoiding what are particularly wrongful birth lawsuits.’ Pa. Senate leg. 1961 (March 22, 1988).
Other proffered rationale for this statute are also persuasive. The legislature believed that it would be improper to view any birth as an evil or wrong, and thus a cause of action. Secondly, our society has become increasingly aware and protective of the rights of the handicapped. To recognize the validity of a wrongful life statute would be to make the handicapped a lower class of citizen. Third, the recognition of these type causes of action by the legislature would, in essence, have dictated to the medical profession how to practice in the area of obstetrics. Finally, a recognition of these causes of action would have caused ever increasing malpractice insurance rates to increase exponentially, with a resulting loss of adequate medical care in this vital area. See Pa.House Leg. 2306 (February 24, 1988).
We believe that section 8305 has a rational basis designed to meet a legitimate state interest. The legislature has not opted to make physicians exempt for their wrongdoings. Rather, the legislature has validly freed physicians from *579 liability for defects or handicaps for which the physician is in no way responsible.
We are persuaded by the arguments of Justice Nix in the Speck v. Finegold, 497 Pa. 77 , 439 A.2d 110 decision. See 497 Pa. at 92-99 , 439 A.2d at 118, 120-21 . We agree with Justice Nix that ‘... any intimation that a recognition is required of these proffered causes of action because of constitutional mandate is completely without foundation.’ 497 Pa. at 96 , 439 A.2d at 120 . ‘... [Tjhere can be no question that refusal to create new tort liability does not constitute governmental interference with the constitutionally protected access to abortion.’ 497 Pa. at 97 , 439 A.2d at 120 .
We believe that the refusal of our legislature to recognize a cause of action for wrongful birth and wrongful life ‘does not impede the decision of the parents’ regarding procreation, nor does it impede a woman’s right to choose to have an abortion. See Speck, 497 Pa. at 99 , 439 A.2d at 121 .”