The opinion
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. 1401-02) 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 nonpersons, 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, 111 N.J. 412 , 545 A.2d 139, 143 (1988); Smith v. Brennan, 31 N.J. 353 , 157 A.2d 497, 498 (1960).