Petition for Writ of Certiorari — Wood v. University of Utah Medical Center

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Supreme Geert, U.S.

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03 -82 ju 112008

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No.

Ju The

Supreme Court of the Anited States

MARIE WOOD and TERRY BORMAN,

individually, and as the natural parents of

MARY LORRAINE WOOD BORMAN,

Petitioners,

Vv.

UNIVERSITY OF UTAH MEDICAL CENTER,

Respondent.

On Petition For Writ Of Certiorari

To The Utah Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Scott R. SABEY

Counsel of Record

FABIAN & CLENDENIN

215 S. State Street,

Twelfth Floor

Salt Lake City, Utah 84111

(801) 531-8900

Attorney for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Does the standard for determining whether a statute has a

constitutionally improper purpose under Casey requir? an

examination of the entire legislative context, as three

Circuit Courts of Appeals have held and this Court has

endorsed, which is in contrast to the Utah Supreme

Court’s holding in this case that-a simple review of unam-

biguous statutory language is sufficient?

Whether there was sufficient evidence to establish tnat

the Wrongful Life Act has the effect of placing a substan-

tial obstacle in the path of a woman seeking an abortion.

~~.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ........ nica hleleaca mate aaisakeceesi ili

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STATUTORY AND CONSTITUTIONAL PROVI-

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STATEMENT OF CABS 6...00.ccscvcccocsosevesvevcssesvessoeseves 2

REASONS FOR GRANTING THE WRIT................. 5

I. The Standard Employed by the Utah Supreme

Court to Determine Whether a Statute Has a

Constitutionally Improper Purpose Conflicts

with the Holdings of the Fifth, Seventh, and

Tenth Circuit Courts of Appeal .................:ceee 6.

II. The Standard Employed By the Utah Supreme

Court to Determine Whether a Statute Has a

Constitutionally Improper Purpose Conflicts

With and Undermines the Decisions of This

III. There Was Sufficient Evidence to Establish

That the Wrongful Life Act Has the Effect of

Placing a Substantial Obstacle in the Path of a

Woman Seeking an Abortion. .............ccsceeeeeeereees 11

CONCLUBION, o..0.ccccersosiresscsevssccisnseovsssseuserevensanersneen 13

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Edwards v. Aguillard, 482 U.S. 578 (1987)........cccccccee0. 9,10

Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996)......... 6

Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999)..............000000. 6

Mazurek v. Armstrong, 520 U.S. 968 (1997)..........cccccccceee0. 9

Miller v. Johnson, 515 U.S. 900 (1995)...........ccccccscecececcceees i)

Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999),

overruled on other grounds, 244 F.3d 405 (5th

OS UERCERES EASES ERS Cea Sn a 6

Planned Parenthood v. Casey, 505 U.S. 833 (1992).....passim

Shaw v. Hunt, 517 U.S. 899 (1996) 0... ccecceesecceeseeees Q

STATE CASES

Wood v. University of Utah Medical Center, 67 P.3d

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CONSTITUTION

Amendment XIV, United States Constitution.................... 1

FEDERAL STATUTES

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STATE STATUTES

Utah Code Ann. § 78-11-23 — 25 ooo... cc ecsssseeersceceseeee 2,4

OPINION BELOW

The opinion of the Utah Supreme Court is reported at

Wood v. University of Utah Medical Center, 67 P.3d 436

(Utah 2002) and is reproduced at Appendix (“App.”) 1a.

JURISDICTION

The Utah State District Court’s judgment was entered

on September 5, 2001. The Utah Supreme Court’s judg-

ment was entered on December 31, 2002, and a timely

petition for rehearing was denied on April 14, 2003. This

Court has jurisdiction under 28 U.S.C. § 1257.

The appropriate notifications were made under 28

U.S.C. § 2403. :

STATUTORY AND

CONSTITUTIONAL PROVISIONS

Amendment XIV, United States Constitution

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

Sen

Utah Code Ann. § 78-11-23 — 25

The Legislature finds and declares that it is

the public policy of this state to encourage all

persons to respect the right to life of all other

persons, regardless of age, development, condi-

tion or dependency, including all handicapped

persons and all unborn persons.

A cause of action shall not arise, and dam-

ages shall not be awarded, on behalf of any per-

son, 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.

The failure or refusal of any person to pre-

vent the live birth of a person shall not be a de-

fense in any action, and shall not be considered

in awarding damages or child support, or impos-

ing a penalty, in any action.

STATEMENT OF CASE

In November 1997, Petitioner Marie Wood, then 43

years old, became pregnant. Ms. Wood and her husband,

Petitioner Terry Borman (collectively “Petitioners”), under-

stood that with Ms. Wood’s age, pregnancy bore increased

risks to herself as well as to her child. Specifically, Ms.

Wood recognized that her pregnancy bore the risk that the

fetus would suffer from a genetic disorder. Accordingly,

Petitioners sought genetic counseling from the Respondent

University of Utah Medical Center.

Beginning in January 1998, the Respondent per-

formed genetic counseling for the Petitioners. The Respon-

dent counseled Petitioners that their child had an

increased risk for Down Syndrome and performed a series

of tests to determine the health of the Petitioners’ fetus.

An ultrasound revealed that the fetus might be suffering

from Down Syndrome. The Respondent did not inform the

Petitioners of this test result.

Additional tests were administered by the Respondent

to determine the genetic make up of the Petitioners’ fetus.

Specifically, Ms. Wood underwent chorionic villus sam-

pling (CVS). However, the Respondent negligently per-

formed the procedure and killed the sampled cells.

Accordingly, Ms. Wood underwent a second CVS test. The

Respondent interpreted the test to indicate that the fetus

was 46xx, identity normal female karyotype. The Respon-

dent so informed the Petitioners.

In March 1998, further genetic testing was performed.

Specifically, Ms. Wood was given an alpha-fetoprotein

analysis (AFP). This test indicated a 60% probability for

Down Syndrome, which combined with the results of the

ultrasound, indicated an 85% probability of Down Syn-

drome. The Respondent did not inform the Petitioners of

the significance of the test results. Based upon these tests

and representations by the Respondent that the fetus did

not suffer genetic abnormalities, the Petitioners agreed to

continue with the pregnancy and deliver the fetus.

On August 19, 1998, Ms. Wood delivered a female

child, Mary Lorraine Wood Borman, by normal vaginal

delivery. Mary was born with the genotype TRISOMY 21,

i.e., Down Syndrome.

The Petitioners filed their complaint against the

Respondent on September 13, 1999. The Petitioners

specifically alleged causes of action for wrongful birth,

wrongful life, negligent infliction of emotional distress and

se ~ eee een

failure to obtain informed consent. On December 28, 1999,

the Respondent filed a motion for judgment on the plead-

ings. The Respondent essentially asserted that Utah Code

Annotated Section 78-11-23 — 25, the Utah Wrongful Life

Act, barred all of the Petitioners’ claims.

The Petitioners opposed the Respondent’s motion and

filed a counter motion for partial summary judgment,

alleging in part that the Wrongful Life Act was unconstitu-

tional under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. App. 75-79.

The district court rejected the Petitioners’ arguments and

found that the Wrongful Life Act did not violate the Due

Process Clause of the Fourteenth Amendment. App. 59.

On September 22, 2000, the Petitioners appealed the

district court’s decision to the Utah Supreme Court. App.

64. As at the district court level, the Petitioners argued to

the Utah Supreme Court that the Wrongful Life Act was

unconstitutional under the Due Process Clause. App. 65.

Specifically, the Petitioners argued that the Wrongful Life

Act imposed an undue burden on a woman’s right to

choose to have an abortion because the Wrongful Life Act’s

purpose and effect was to place a substantial obstacle in

the path of a woman seeking an abortion. App. 45-49.

On December 31, 2002, the Utah Supreme Court ruled

that the Wrongful Life Act was not unconstitutional under

the Due Process Clause. In so holding, the Utah Supreme

Court rejected the Petitioners’ claims that the Wrongful

Life Act had an improper purpose, holding “that the

legislation was not intended to, and the language does not,

on its face, unduly burden the ability of a woman to abort

a nonviable fetus.” App. 17. In reaching this decision, the

Utah Supreme Court expressly rejected the Petitioners’

claims that the Wrongful Life Act’s legislative history

expressly demonstrated thai the Wrongful Life Act's

purpose was to prevent abortions. The Utah Supreme

Court refused to even consider the legislative history,

stating that “we need not examine the legislative history

of this statute to discover the legislative intent . . . [since]

we look first to its plain language as the best indicator of

the legislature’s intent and purpose in passing the stat-

ute....” App. 16.

Although the Wrongful Life Act created a “safe harbor

for health care officials who withhold information which

could be used to make a determination on whether or not

to abort a nonviable fetus”, the Utah Supreme Court held

that the Wrongful Life Act did not have the effect of

placing a substantial obstacle in the path of a woman

seeking to abort a nonviable fetus. ... App. 21.

The Petitioners filed a timely Petition for Rehearing.

The Utah Supreme Court directed the Respondent to file a

response but ultimately denied the petition. App. 41-43.

,’

REASONS FOR GRANTING THE WRIT

The Utah Wrongful Life Act grants statutory immu-

nity to health care providers who intentionally or negli-

gently withhold information from their patients which

could be used to make a determination of whether or not

to abort a nonviable fetus. The Utah Supreme Court held

that the Wrongful Life Act did not violate the Due Process

Clause of the Fourteenth Amendment and the test estab-

lished in Planned Parenthood v. Casey, 505 U.S. 833, 846

(1992) (plurality opinion). Specifically, the Utah Supreme

Court held that the Wrongful Life Act did not have the

“purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion.” Casey, 505 U.S. at

877. As will be shown, the standard adopted by the Utah

Supreme Court in applying both the purpose and effects

prong of the Casey Test conflicts with numerous decisions

of Circuit Courts of Appeals as well as the decisions of this

Court.

I. The Standard Employed by the Utah Supreme

Court to Determine Whether a Statute Has a

Constitutionally Improper Purpose Conflicts

with the Holdings of the Fifth, Seventh, and

Tenth Circuit Courts of Appeal.

Three Circuits have held that the appropriate test to

determine whether a statute has a constitutionally proper

purpose under the Casey test requires more than a simple

examination of the unambiguous language of the statute.

Instead, a detailed analysis of the legislative history,

structure, process and relevant times is required. See Jane

L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996)

(noting that an unconstitutional purpose under the Casey

test can be “gleaned from both the structure of the legisla-

tion and from examination of the process that led to its

enactment.”); Karlin v. Foust, 188 F.3d 446, 496 (7th Cir.

1999) (recognizing “a party attempting to show an imper-

missible intent” may produce “evidence of unconstitutional

intent or purpose” even where “the legislature has other-

wise identified permissible purposes in enacting the

legislation being challenged.”); Okpalobi v. Foster, 190 F.3d

337, 355-56 (Sth Cir. 1999), overruled on other grounds,

244 F.3d 405 (5th Cir. 2001) (rejecting argument that

“indicia of improper legislative purpose, such as statutory

language, legislative history and context, and related

legislation, are irrelevant to the purpose prong of the

undue burden inquiry.”).

In short, these three Courts of Appeals held that an

examination of more than the simple text of the chal-

lenged statute was warranted, even where the legislation’s

expressly stated purpose was arguably proper. Instead, the

Courts of Appeals held that the “purpose prong” of the

Casey Test required that the totality of circumstances

surrounding the statute be examined.

In this case, the Utah Supreme Court applied a

completely different standard to determine whether the

Wrongful Life Act has a constitutionally valid purpose

under the “purpose prong” of Casey. The Utah Supreme

Court held that it “need not examine the legislative

history of this statute to discover the legislative intent.

Where the legislative purpose is expressly stated and

agreed to as part of the legislation, we do not look at the

views expressed by one or more legislators in floor debates,

committee minutes, or elsewhere, in determining the

intent of the statute.” App. 16. Under the Utah Supreme

Court’s standard, if a statute’s language is unambiguous

as to its purpose, no further analysis is required. This

standard is in direct conflict with the Fifth, Seventh and

Tenth Circuit Courts of Appeals’ determinations as demon-

strated above.

This Court should decide what the correct standard is

under the “purpose prong” of Casey. The scope of the

inquiry into what legislative history, if any, is necessary to

determine whether a statute has an unconstitutional

purpose is a matter of broad importance and affects a

fundamental right, namely the right to choose to have an

abortion without an undue burden. Therefore, the Court

should decide whether the standard adopted by the Courts

of Appeal or the Utah Supreme Court is the correct stan-

dard. Otherwise, there will be continued widespread

confusion and inconsistent results.

II. The Standard Employed By the Utah Supreme

Court to Determine Whether a Statute Has a

Constitutionally Improper Purpose Conflicts

With and Undermines the Decisions of This

Court.

The standard adopted by the three Circuit Courts of

Appeals is the correct standard for determining whether a

statute has a constitutionally improper purpose under

Casey and is consistent with the holdings of this Court.

The Utah Supreme Court’s test conflicts with and under-

mines the holdings of this Court in stating the appropriate

standards to determine the constitutionality of legislative

acts.

While this Court has not expressly outlined the

appropriate standard to apply to the “purpose prong”

outlined in Casey, the Court has provided substantial

guidance. Abortion law is not the only area of jurispru-

dence in which courts are required to determine whether a

statute has been adopted with an impermissible purpose.

Such analysis has been performed by this Court in other

contexts, including voting rights and Establishment

Clause cases.

Even when legislative intent is expressed in the

language of the act, this Court has repeatedly held that

further inquiry into the statute’s purpose must be made.

This inquiry includes the language of the challenged act,

Bi Pan Oak eh BT De Oe IONS Y oe Se ES le +s

the legislative history, the historical context of the legisla-

tion, and even other legislation concerning the same

subject matter. See, e.g., Shaw v. Hunt, 517 U.S. 899

(1996) (noting that in voting rights cases an unconstitu-

tional purpose may be gleaned from the structure of the

legislation as well as an examination of the process that

led to its enactment); Miller v. Johnson, 515 U.S. 900, 916

(1995) (finding that plaintiffs may demonstrate improper

purpose — even where a statute is race neutral — through

direct evidence of legislative purpose); Edwards v. Aguil-

lard, 482 U.S. 578, 594 (1987) (“A court’s finding of im-

proper purpose behind a statute is appropriately

determined by the face of the statute, its legislative

history, or its interpretation by a responsible administra-

tive agency.”).

The closest this Court has come to outlining the

correct standard for applying Casey’s “purpose prong” was

Mazurek v. Armstrong, 520 U.S. 968 (1997). In that case,

the Court stated that the plaintiffs needed to come forth

with “some evidence of that improper purpose” in order to

satisfy Casey. Id. at 972. Nevertheless, the Mazurek Court

noted that “[o]Jne searches the Court of Appeals’ opinion in

vain for any mention of any evidence suggesting an unlaw-

ful motive on the part of the Montana Legislature.” Id.

Thus, the Court inferred that reviewing courts should look

beyond the statute and to the entire circumstances sur-

rounding the legislation.

In Edwards, this Court outlined the reason for pro-

ceeding beyond the statute’s stated purpose or language.

In examining the purpose of a statute under the Estab-

lishment Clause, this Court recognized that “[t]rue, the

Act’s stated purpose is to protect academic freedom.” Jd. at

586. Notwithstanding, “[w]Jhile the Court is normally

deferential to a State’s articulation of a secular purpose, it

is required that the statement of such purpose be sincere

and not a sham.” Id. at 586-87. The Court recognized that

to merely accept a stated purpose would only encourage

legislatures to place valid purposes in the act’s language,

thereby precluding any inquiry into the true purpose of

the statute. By so doing, legislatures could have improper

motives, albeit not stated in the statute, but avoid consti-

tutional scrutiny.

Such is the case here. While the Wrongful Life Act

does state an arguably valid purpose, that purpose was not

the actual intended purpose of the drafter, sponsor or

other legislators. As Chief Justice Durham summarized in

her dissent, “legislative history conclusively demonstrates

that [the Wrongful Life Act’s] purpose was to place an

obstacle in the path of those choosing to abort.” App. 51.

This legislative history includes statements by the Wrong-

ful Life Act’s sponsor and drafter that the statute was

designed to eliminate parents from becoming “informed”

regarding the health of their fetus and thereby preventing

abortions. App. 53. But the Utah Supreme Court never

reached the point of analyzing the true purpose, instead

relying on what the Utah Legislature stated in the act

itself.

Thus, the standard adopted by the Utah Supreme

Court to determine whether a statute has a constitution-

ally improper purpose under Casey frustrates the deci-

sions and intent of this Court. The test as prescribed and

applied by the Fifth, Seventh and Tenth Circuits is in line

with the holdings of this Court.

ae ea aegis gua aa oh nce EEA SA Rl TE ANS

Ill. There Was Sufficient Evidence to Establish

That the Wrongful Life Act Has the Effect of

Placing a Substantial Obstacle in the Path of a

Woman Seeking an Abortion.

Recognizing that the Wrongful Life Act “create[s] a

safe harbor for health care professionals who withhold

information which could be used to make a determination

on whether or not to abort a nonviable fetus”, the Utah

Supreme Court noted that whether the statute has the

effect of placing a substantial obstacle is “a closer ques-

tion.” App. 17. Despite correctly citing that the Casey test

controlled, the Utah Court failed to correctly apply all

aspects of the “effect prong” of the test.

As this Court stated in Casey, “[a] statute with [the]

purpose [of placing a substantial obstacle in the path of a

woman seeking an abortion before the fetus attains

viability] is invalid because the means chosen by the State

to further the interest in potential life must be calculated

to inform the woman’s free choice, not hinder it.” Casey,

505 U.S. at 877. In other words, statutes that restrict

information have the effect of hindering reproductive free

choice, and are, accordingly, invalid.

There was sufficient evidence that the Wrongful Life

Act was not calculated to inform the woman’s free choice,

and therefore had an improper effect. The information

encouraged to be withheld by the Wrongful Life Act — the

hea'th of the fetus — is so integral to informed choice that

its omission substantially obstructs a woman’s right to

make an informed decision to abort.

Admittedly, the Wrongful Lue Act shields physicians from

liability for failing to provide accurate, medically relevant

information. By so doing, a substantial deterrent to

providing accurate and complete information is removed.

The State of Utah, through removal of this deterrent,

substantially and sufficiently encourages physicians to

violate a woman’s right to an abortion by permitting

physicians to withhold accurate information from that

woman, thereby precluding her ability to exercise her

fundamental right.

In fact, the Wrongful Life Act precludes any account-

ability to a physician who fails, whether intentionally or

not, to inform a woman regarding the health of her fetus, a

woman who, but for the physician’s wrongdoing, would

have exercised her fundamental right to an abortion.

Because the Respondent was encouraged under the Act to

withhold accurate information, the Petitioners were

denied their liberty interest under the Fourteenth Amend-

ment to make an informed decision regarding whether to

terminate the pregnancy. The Wrongful Life Act thereby

had a direct and substantial obstruction on Petitioners’, as

well as others, ability to make an informed decision as to

whether Ms. Wood should terminate her pregnancy.

Accordingly, because the Wrongful Life Act has this effect,

it is unconstitutional under Casey.

The Utah Supreme Court refused to recognize that

this failure to provide information has an improper effect

and burdens a woman’s right to choose. Rather, the Utah

Supreme Court held that “effect” could only be shown

through scientific or statistical evidence. Such an interpre-

tation does not comply with this Court’s decision in Casey.

Thus, the Court should grant certiorari and correct the

EEE

Utah Supreme Court by deciding the proper test to deter-

mine “effect” under Casey.

CONCLUSION

A writ of certiorari should be granted.

This 11th day of July, 2003.

Respectfully submitted,

ScoTT R. SABEY

Attorney for Petitioners

215 South State Street, 12th Floor

Salt Lake City, Utah 84111

(801) 531-8900

App. 1

2002 UT 134

This opinion is subject to revision before final

publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

Marie Wood and Terry Borman No. 20000827

individually and as the natural

parents of Mary Lorraine Wood

Borman, a minor,

Plaintiffs and Appellants,

FILED

me December 31, 2002

University of Utah Medical

Center,

Defendant and Appellee.

Third District, Salt Lake

The Honorable Homer F. Wilkinson

Attorneys: Thomas A. Schaffer, J. David Pearce, Salt

Lake City, for plaintiffs David G. Williams,

Rodney R. Parker, Salt Lake City, for de-

fendant

WILKINS, Justice:

41 The instant appeal requires us to determine the

constitutionality of the Utah Wrongful Life Act, Utah Code

Ann. §§ 78-11-23 to -25 (2002), legislation prohibiting a

cause of action “based on the claim that but for the act or

omission of another, a person would not have been permit-

ted to have been born alive but would have been aborted.”

App. 2

Utah Code Ann. § 78-11-24 (2002). Plaintiffs insist the

statute violates the Open Courts Clause, article I, section

11 of the Utah Constitution, the Due Process guarantees of

the United States and Utah Constitutions, and the Equal

Protection guarantees of the United States and Utah

Constitutions. Plaintiffs claim the district court erred in

upholding the Utah Wrongful Life Act as constitutional

and in dismissing plaintiffs’ complaint for wrongful birth

as barred by the Act. We are also asked to decide whether

plaintiffs’ claims for negligent infliction of emotional

distress and failure to obtain informed consent were ~

appropriately dismissed as barred by the Act because they

necessarily require proof that plaintiffs would have

aborted the child. We affirm the decision of the district

court.

FACTUAL AND PROCEDURAL BACKGROUND

q2 When determining whether a trial court properly

dismissed a complaint, we accept the factual allegations in

the complaint as true and consider them, and all reason-

able inferences to be drawn from them, in the light most

favorable to the non-moving party. See Krouse v. Bower,

2001 UT 28, J 2, 20 P.3d 895. We recite the facts accord-

ingly.

43 This case arose from treatment and advice that

plaintiffs Marie Wood and Terry Borman received from the

University of Utah Medical Center related to Marie’s

pregnancy. When Marie became pregnant, she and her

husband, Terry, sought genetic counseling from the Uni-

versity of Utah Medical Center (“Medical Center”). They

specifically sought advice about the risk that Marie,

because of her age, would give birth to a child with a

App. 3

genetic disorder. Doctors at the Medical Center performed

some tests in January 1998, the results of which plaintiffs

claim they were never informed. Further testing was

performed in February and March 1998. An initial Febru-

ary test was unsuccessful, so plaintiffs opted for a repeat

test later in the month. A second February test was per-

formed, followed by further testing in March. Plaintiffs

claim they were again not informed of the results of a

March test. They were, however, informed in late March

that the tests indicated an 85% probability that Marie’s

would-be child would be born with Down syndrome.

Nevertheless, doctors told plaintiffs not to worry because

the tests often resulted in false positives and led plaintiffs

to believe that the chances Marie’s child would have Down

syndrome were actually quite small. Based on this advice,

plaintiffs decided to proceed with delivery. In August 1998,

Marie delivered a baby girl, Mary Lorraine, who was

diagnosed with Down syndrome.

44 Plaintiffs filed suit in the district court alleging

that the doctors and other health care professionals

employed at the Medical Center were negligent because

they misread the tests, and failed to inform plaintiffs of

certain test results; specifically, the likelihood that Marie

would deliver a child with Down syndrome. Plaintiffs

raised three causes of action: (1) Negligence in performing

and interpreting various tests and for failing to provide

plaintiffs with sufficient information to make an informed

decision whether to abort, resulting in the birth of Mary, a

child with Down syndrome. In raising this claim plaintiffs

maintain that because of this negligence, they incurred

the cost of labor and delivery, they are incurring unwanted

medical and other expenses related to Mary's care, they

will be “unable to live ordinary lives due to the increased

App. 4

attention Mary Lorraine will require,” they suffer mental

anguish and pain and suffering, and Mary was “wrong-

fully born afflicted with Down Syndrome, and will suffer

the effects of that syndrome for the remainder of her

natural life.” (2) Negligent infliction of emotional distress.

In raising this claim plaintiffs “re-aver[ed] all allegations

previously stated” and claimed “they will continue to incur

pain and suffering and mental anguish for the remainder

of their natural lives” because of the Medical Center’s

negligence. (3) Failure to obtain informed consent. In

raising this claim plaintiffs again “re-aver[ed] all allega-

tions previously stated.” Plaintiffs also specifically insisted

that “[a] reasonable, prudent person or persons in Plain-

tiffs’ position would not have consented to the health care

rendered after having been fully informed as to all facts

relevant to the decision to give consent.” Plaintiffs further

claimed they were “denied the opportunity to make an

informed decision as to the medical care they would

receive, and as to the continuation of the pregnancy,” and,

as a result, suffer “mental anguish and distress, loss of

consortium, costs associated with labor and delivery,

extraordinary medical and other related expenses, and the

right to lead a normal life.” Couched as a fourth cause of

action, plaintiffs asserted that section 78-11-24 of the Utah

Code is unconstitutional.

15 The Medical Center filed a motion for judgment

on the pleadings, pursuant to Utah Rule of Civil Procedure

12(c), alleging that plaintiffs’ claims were barred by

sections 78-11-23 and -24 of the Utah Cede, two provisions

of the Utah Wrongful Life Act. Plaintiffs opposed the

motion and filed a cross-motion for partial summary

judgment, asserting that section 78-11-24 is unconstitu-

tional. The district court held that section 78-11-24 was

App. 5

constitutional and barred all of plaintiffs’ claims, therefore

granting defendant’s motion for judgment on the pleadings

and denying plaintiffs’ motion for partial summary judg-

ment.

96 Plaintiffs appeal, challenging section 78-11-24 as

violative of the Open Courts Clause of the Utah Constitu-

tion, the Due Process Clauses of the Utah and United

States Constitutions, and the equal protection guarantees _

of the Utah and United States Constitutions. Plaintiffs

also claim the district court erred in dismissing their

claims for negligent infliction of emotional distress and

failure to obtain informed consent.

ANALYSIS

I. OPEN COURTS CLAUSE

A. Standard of Review

¥7 “The issue of [wJhether a statute is constitutional

is a question of law, which we review for correctness,

giving no deference to the trial court.’” Grand County v.

Emery County, 2002 UT 57, 16, 52 P.3d 1148 (quoting

State v. Daniels, 2002 UT 2, J 30, 40 P.3d 611). Further-

more, we presume the legislation being challenged is

constitutional, and we resolve any reasonable doubts in

favor of constitutionality. Id.; see also Utah Sch. Bds. Ass’n

v. State Bd. of Educ., 2001 UT 2, 9 9, 17 P.3d 1125. As this

court stated in a prior Open Courts case:

The first and foundational [principle of law relat-

ing to the constitutionality of statutes] is that the

prerogative of the legislature as the creators of

the law is to be respected. Consequently, its en-

actments are accorded a presumption of validity;

and the courts do not strike down a legislative

App. 6

act unless the interests of justice in the particu-

lar case before it require doing so because the act

is clearly in conflict with the higher law as set

forth in the Constitution.

Zamora v. Drape:, 635 P2d 78, 80 (Utah 1981) (internal

citations omitted); see also Soc’y of Separationists, Inc. v.

Whitehead, 870 P.2d 916, 920 (Utah 1993); Lindon City v.

Engineers Const. Co., 636 P.2d 1070, 1073 (Utah 1981).

78 We recognize that on previous occasions involving

Open Courts challenges this court recognized an exception

to our well-settled presumption-of-constitutionality stan-

dard. See Hipwell v. Sharp, 858 P.2d 987, 988 n.4 (Utah

1993); Condemarin v. Univ. Hosp., 775 P.2d 348, 368 (Utah

1989) (Zimmerman, J., concurring); see also Currier v.

Holden, 862 P.2d 1357, 1362-63 (Utah Ct. App. 1993). We

submit that this heightened standard of review for Open

Courts challenges was in error. Any heightened level of

scrutiny simply because the constitutional challenge is

based on the Open Courts Clause is improper. We recog-

nize that returning to the established standard of review

is contrary to the relatively recent above-cited decisions.

However, “[t]his court has ‘not hesitated ... to reverse

case law when we are firmly convinced that we have erred

earlier.’” Clark v. Clark, 2001 UT 44, 7 32 n.3, 27 P.3d 538

(quoting Staker v. Ainsworth, 785 P.2d 417, 424 n.5 (Utah

1990)) (Russon, A.C.J., dissenting, joined by Howe, C.J.).

We are firmly convinced that this court erred earlier, and,

as a result, we would review challenges to legislation

based on the Open Courts Clause for correctness, resolving

any reasonable doubts in favor of constitutionality, just as

in all other such cases.

PS aap) Bi eit Oe as, 2

App. 7

B. Berry Analysis

q9 The Open Courts Clause analysis is controlled by

Laney v. Fairview City, 2002 UT 79, 57 P.3d 1007, this

court’s recent interpretation of the Open Courts Clause,

upholding Berry ex rel. Berry v. Beech Aircraft Corp., 717

P2d 670 (Utah 1985).' The challenged legislation, section

78-11-24 of the Utah Code, was enacted in 1983 and reads

as follows:

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 omis-

sion of another, a person would not have been

permitted to have been born alive but would

have been aborted.

Utah Code Ann. § 78-11-24 (2002). Plaintiffs first claim

that the statute violates the Open Courts Clause. In order

for a statute to withstand a constitutional challenge under

the Open Courts Clause, Berry requires one of two condi-

tions to be met:

First, ... the law [must otherwise provide]

an injured person an effective and reasonable al-

ternative remedy “by due course of law” for

! The author and Associate Chief Justice Durrant disagree with

the current Open Courts analytical framework, and are still firmly

convinced that the decision in Laney to adhere to the Berry interpreta-

tion and test was erroneous. See Laney, 2002 UT 79 at 91 84-139,

(Wilkins, J., dissenting). Nevertheless, Laney is controlling precedent

from this court, and we are cognizant of and respect the principle of

stare decisis which gives stability and predictability to our legal system.

See Clark, 2001 UT 44 at 74 25-29, (Wilkins, J., concurring). On that

basis, we apply the Berry test to the instant case to reach the decision

of this court, that the challenged legislation is constitutional.

App. 8

vindication of his constitutional interest. The

benefit provided by the substitute must be suo-

stantially equal in value or other benefit to the

remedy abrogated in providing essentially com-

parable substantive protection to one’s person,

property, or reputation, although the form of the

substitute remedy may be different .. . [; or]

[s]lecond, if there is no substitute or alterna-

tive remedy provided, abrogation of the remedy

or cause of action may be justified only if there is

a clear social or economic evil to be eliminated

and the elimination of an existing legal remedy is

not an arbitrary or unreasonable means for

achieving the objective.

Berry, 717 P.2d at 680 (citations omitted).

410 Plaintiffs argue that the statute violates the

Open Courts Clause because it abrogates a legal remedy

(1) without providing an alternative remedy and (2)

without eliminating a clear social or economic evil. First,

plaintiffs insist that the statute abrogates a legal remedy

without providing an alternative remedy. Plaintiffs assert

that their claim for professionali negligence, cognizable

before the legislation was enacted, has been eliminated

without providing any remedy, let alone one that is “sub-

stantially equal in value or other benefit.” Jd. Plaintiffs

further assert that Utah has always recognized a remedy

for medical malpractice, particularly in 1983 when the

statute was enacted, the time critical to the Berry analy-

sis. They contend the Medical Center owed them a duty of

professional care, which it breached, depriving plaintiffs of

the opportunity to make an informed choice. In other

words, according to plaintiffs, their claim is simply a

negligence claim, and because of the legislation, their

claim that would have been valid prior to the statute is

App. 9

now no longer available. Second, plaintiffs argue that

because there is no effective and reasonable alternative

remedy, the legislation must satisfy the second Berry

query, which it does not. “[Ilf there is no substitute or

alternative remedy provided, abrogation of the remedy or

cause of action may be justified only if there is a clear

social or economic evil to be eliminated and the elimina-

tion of an existing legal remedy is not an arbitrary or

unreasonable means for achieving the objective.” Id.

(citations omitted). According to plaintiffs, the statute does

not eliminate a clear social or economic evil. They declare

that abortion cannot be a clear social evil because a

woman has a constitutional right to terminate a preg-

nancy. Additionally, they claim, the Medical Center has not

shown that the evil they suggest was eliminated, the

stigmatization of unwanted children, was the evil the

legislature intended to eliminate. Moreover, according to

plaintiffs, the statute is arbitrary and unreasonable. in

attempting to achieve its objectives. Plaintiffs insist the

avowed legislative objective veils the statute’s underlying

objectives, which include permitting doctors to refuse to

perform abortions and an intent to reduce genetic testing.

The essence of the problem for plaintiffs is that, in their

view, the statute does away with a remedy that existed

prior to the statute’s enactment, effectively insulating

doctors from professional liability under circumstances

such as these, and in abolishing this remedy, the legisla-

ture did not eliminate a clear social or economic evil, much

less do so through a non-arbitrary, reasonable statute that

is narrowly tailored to advance its avowed purpose.

411 The Medical Center counters that the statute

does not violate the Open Courts Clause for two reasons.

First, the statute. does not abrogate an existing legal

App. 10

remedy. The Medical Center insists a wrongful birth claim

is not simply a medical malpractice claim and that there

was no existing cause of action for wrongful birth in 1983

when section 78-11-24 was enacted. Second, it proposes

that, assuming the statute does abrogate an existing legal

remedy without providing an effective and reasonable

alternative remedy, there is a clear social or economic evil

to be eliminated, namely the stigmatization of disabled

and unwanted children, and the statute is not an arbitrary

or unreasonable means for achieving this objective. Thus,

the statute is a constitutional exercise of legislative power.

q12 We turn to the initial Berry query: Whether the

statute provides an effective and reasonable alternative

remedy, substantially equal in value or other benefit to the

abrogated legal remedy. Berry, 717 P.2d at 680. Inherent in

this question, however, is whether the statute abrogated

an existing remedy or cause of action. See Cruz v. Wright,

765 P.2d 869, 870-71 (Utah 1988). We agree with defen-

dant that the statute did not abolish an existing legal

claim or remedy because Utah did not recognize a right to

sue for wrongful birth in 1983.

q13 As required under Day v. State, we consider

whether the statute abolished a legal remedy that existed

at the time of enactment, not whether the statute abol-

ished a legal remedy that existed at the time of statehood.

1999 UT 46, 11 36-38, 980 P.2d 1171. We disagree with the

plaintiffs’ argument that the statute abolished the right to

claim negligence against a physician who gives erroneous

medical advice to a mother who, based on that erroneous

advice, decides to proceed with pregnancy and then deliv-

ers a child with a disability. It is true that health care

professionals are essentially insulated from certain profes-.

sional malpractice claims; but, the fact remains that,

App. 11

under our Berry test, the statute did not abolish an exist-

ing legal claim or remedy because Utah did not recognize a

right to sue for wrongful birth in 1983.

414 ‘We note at the outset that “[a]t common law, no

cause of action existed for either wrongful birth or wrong-

ful death.” Hickman v. Group Health Plan, Inc., 396

N.W.2d 10, 13 (Minn. 1986) (citing Baker v. Bolton, 170

Eng. Rep. 1033 (N.P. 1808), and W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts §§ 55, 125A (5th

ed. 1984)). More importantly, though, this court has never

recognized the tort of wrongful birth in Utah. In Payne ex

rel. Payne v. Myers, this court was presented with a

wrongful birth claim, but decided the appeal without

determining whether a cause of action for wrongful birth

existed in Utah. The court stated, “[a]Jssuming, but not

deciding, that Utah jurisprudence should recognize an

action for wrongful birth, it is necessary to determine

when the parents’ cause of action accrued.” 743 P.2d 186,

188-89 (Utah 1987) (footnote omitted). The court then held

that plaintiffs’ hypothetical claim for wrongful birth was

barred in any event by governmental immunity because

plaintiffs did not file a notice of claim within one year of

when the alleged injury accrued. Id. at 189-90. The follow-

ing year, in C.S. v, Nielson, 767 P.2d 504 (Utah 1988), this

court again decided an appeal involving a claim for wrong-

ful birth without deciding whether such a tort was recog-

nized in Utah. See id. at 506. The court distinguished

claims for wrongful life, wrongful pregnancy, and wrongful

App. 12

conception from a claim of wrongful birth,’ but then went

on to expressly note that Nielson “is correctly viewed as

involving a wrongful pregnancy cause of action.” Jd. In

both Nielson and Payne, the court noted that other states

that had considered wrongful birth claims were almost

unanimous in their recognition of a cause of action where

it was alleged that but for negligence, the parents would

have terminated a congenitally or genetically defective

fetus by abortion. Nielson, 767 P.2d at 506 n.4 (citing

Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 696

(Ill. 1987)); Payne, 743 P.2d at 188-89 n.5. Neither Nielson

or Payne recognized, however, the existence of a cause of

action for wrongful birth in Utah. At best, it was unclear

whether such a cause of action might have been 1 ecognized

by this court prior to 1983, if it had decided the issue. The

fact remains, though, that no such decision was made, and

consequently the tort of wrongful birth did not exist in

Utah in 1983. In the absence of a declaration by this court

either recognizing, or refusing to recognize, a cause of

action for wrongful birth, the legislature set forth the law,

declaring that claims for wrongful birth would not be

recognized in Utah in enacting section 78-11-24. As a

result, regardless of whether such an action was recog-

nized by other states at the time, because a cause of action

for wrongful birth did not exist in Utah at the time the

2 This court defined wrongful birth as a “cause of action whereby

parents claim they would have avoided conception or terminated an

existing pregnancy by abortion but for the negligence of those charged

with, among other things, prenatal testing or counseling as to the

likelihood of giving birth to a physically or mentally impaired child.”

Nielson, 767 P.2d at 506; see also Payne, 743 P.2d at 187 n.1. This is

what plaintiffs have claimed in this case.

Ket

App. 13

statute was enacted in 1983, the legislature did not

abrogate an existing legal remedy.

715 In sum, because the statute did not abrogate an

existing legal remedy, and because the Berry test begins

with the presumption that a legal remedy was abolished,

the legislation satisfies the first Berry hurdle. Because we

conclude that no existing remedy was abrogated, we need

not apply the second part of the Berry test.° As was the

case in Cruz v. Wright, “in the present case, in contrast to

Berry, the statute in question did not operate either to

extinguish a cause of action after it had accrued or to limit

the remedies available; it simply prevented one from ever

arising.” 765 P.2d 869, 871 (Utah 1988). We therefore hold

that the legislation in question was a constitutional

exercise of legislative authority that did not violate the

Open Courts Clause.

* In Laney, I stated that “other cases may, and certainly will, more

clearly reveal reasonable positions on either side of the Berry frame-

work.... ” 2002 UT 79 at ¥ 92. To me, this case reveals an inherent

problem with the Berry test, that it “simply sets forth a framework for

justifying the policy position of a majority of the members of this court.”

Id. The second Berry query is as follows: If there is no substitute or

alternative remedy provided, does the statute remedy a clear social or

economic evil; and is the statute, the means for achieving the objective,

a non-arbitrary or reasonable means for eliminating the clear social or

economic evil? To me, the positions of both plaintiffs and defendant on

this point are not unreasonable. Plaintiffs’ contention has merit: The

right to abort a fetus is a constitutional right and therefore cannot be a

clear social evil. The defendant’s argument also has merit: destroying a

life or potential life because it is likely to be disabled is a clear social

evil. In my view, the fact that both positions are reasonable reveals the

disguise of the Berry test, that it functions as a vehicle for judicial

legislation, permitting — even requiring — this court to substitute its

judgment on what constitutes good public policy for the policy judgment

of the legislature, the representatives of the public.

App. 14

II. DUE PROCESS

q16 Plaintiffs insist the statute violates the Due

Process Clauses of the United States and Utah Constitu-

tions. They claim that, despite the statement of legislative

purpose 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 handicapped persons and all unborn per-

sons,” Utah Code Ann. § 78-11-23 (1996), the purpose and

effect of the statute is to unduly burden a furdamental

constitutional right — the right of a woman to abort an

unviable fetus. Plaintiffs argue that the statute, in effect,

eliminates informed choice, and informed choice is central

to the right to terminate a pregnancy. The Medical Center

counters that the statute does not violate either the

United States or Utah Due Process Clauses.’ The Medical

Center argues that the purpose of the statute is not to

prevent abortions, but indeed to “encourage people to

respect the right to life of all other persons, . . . including

all persons with a disability and all unborn persons.”

Defendant claims plaintiffs’ alleged sources of legislative

history are not valid sources, but statements of the drafter

and some legislators in non-legislative settings. The

Medical Center asserts that the statute does not have the

‘ The language “all handicapped persons” was changed in 2001 to

read “all persons with a disability.” See Utah Code Ann. § 78-11-23

(2002).

® Defendant initially claims there is no state action. This is clearly

not the case, however, as the passage of the legislation and subsequent

application of it by the district court constitutes obvious action by the

state government for purposes of Fourteenth Amendment analysis. See

Shelley v. Kraemer, 334 U.S. 1, 14 (1947).

App. 15

effect of unduly burdening the right of a woman to choose

to abort her would-be child. According to the Medical

Center, in order to be unconstitutional under the Due

Process Clause, the statute must impose a significant

burden on, or place a substantial obstacle in the path of a

woman seeking to abort an unviable fetus; and this statute

does not unduly burden this fundamental right.

A. Federal Due Process

{17 In Planned Parenthood v. Casey, the Supreme

Court upheld the essential holding of Roe v. Wade, that a

woman has the right to terminate her pregnancy before

viability. Casey, 505 U.S. 833, 870-71 (1992); Stenberg v.

Carhart, 530 U.S. 914, 921 (2000). In Casey, balancing the

state’s interest in fetal life and the right of a woman to

decide to abort a nonviable fetus, the Court further held

that this right of a woman to abort an unviable fetus

cannot be unduly burdened by the state; a state regulation

cannot have “the purpose or effect of placing a substantial

obstacle in the path of a woman seeking an abortion of a

nonviable fetus.” Id. at 877; Stenberg, 530 U.S. at 921

(quoting Casey, 505 U.S. at 877). Thus, current federal

substantive due process requires us to decide whether

section 78-11-24 prohibiting lawsuits for wrongful birth —

claims “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” — “has the purpose or

effect of placing a substantial obstacle in the path of a

woman seeking an abortion of a nonviable fetus.” Casey,

505 U.S. at 877. In our view, the statute does not, either on

its face or in its effect, place an undue burden on a

woman’s ability to abort an unviable fetus.

App. 16

418 First, the statute is not unconstitutional on its

face. By prohibiting causes of action based upon the

assertion that but for the negligence of another, a fetus

would have been aborted, the statute does not, on its face,

place a substantial obstacle in the path of a woman seek-

ing an abortion. The statute’s purpose is not to unduly

burden the ability of a woman to abort an unviable fetus,

but to prevent lawsuits for wrongful birth and thereby

“encourage all persons to respect the right to life of all

other persons.” Utah Code Ann. § 78-11-23 (1996).

419 Plaintiffs’ contention that the statute’s legisla-

tive history evidences that the statute’s purpose is to

prevent or hinder abortions is unavailing as we need not

examine the legislative history of this statute to discover

the legislative intent. “When examining a statute, we look

first to its plain language as the best indicator of the

legislature’s intent and purpose in passing the statute.”

Wilson v. Valley Mental Health, 969 P.2d 416, 418 (Utah

1998). Legislators may decide that a statute should be

passed for myriad, often even different, reasons, but where

the legislative purpose is expressly stated and agreed to as

part of the legislation, we do not look to the views ex-

pressed by one or more legislators in floor debates, com-

mittee minutes, or elsewhere, in determining the intent of

the statute. Because the legislature expressly set forth its

intent and purpose in section 78-11-23 in enacting the

instant legislation, we do not look at its legislative history.

The purpose of the instant statute, as stated in section 78-

11-23, is clear and unambiguous: “to encourage all persons

to respect the right to life of all other persons, .. . includ-

ing all persons with a disability and all unborn persons.”

§ 78-11-23 (2002); see also § 78-11-23 (2002).

BONA RO ee aa

Se ary >» #

App. 17

9720 There is no language in the Act limiting a

woman’s right to choose to abort a nonviable fetus. The

statute does not contain language that addresses the

ability of a woman to choose an abortion, much less does it

contain language that, on its face, restricts that right. The

statutory language prohibits one from filing suit to recover

damages where the claim is that but for the act or omis-

sion of another, the fetus would have been aborted. Given

the stated purpose and the text of the Utah Wrongful Life

Act, we hold that the legislation was not intended to, and

the language does not, on its face, unduly burden the

ability of a woman to abort a nonviable fetus.

921 Whether the statute has the effect of placing a

substantial obstacle in the path of a woman seeking to

abort a nonviable fetus is a closer question. The statute

does create a safe harbor for health care professionals who

withhold information which could be used to make a

determination on whether or not to abort a nonviable

fetus. Nonetheless, we hold that this restriction on the

ability to sue for damages does not place a substantial

obstacle in the path of a woman wishing to obtain an

abortion; we are not convinced that the statute, in prac-

tice, places an undue burden on a woman who seeks to

abort a fetus.

q22 We disagree with plaintiffs’ reasoning that the

statute’s effect is to obstruct a women who wishes to

terminate her pregnancy from doing so. Plaintiffs reason

that because a mother cannot sue her doctor alleging that,

had the doctor fully informed her, she would have chosen

to abort the fetus, doctors are insulated from some tort

liability. Therefore, because doctors are insulated ‘rom

some “wrongful birth” claims, doctors who disfavor abor-

tion are licensed to withhold information and will not

App. 18

disclose information that they think may persuade a

patient to abort. Consequently, according to plaintiffs,

because the statute protects some doctors from being sued,

and therefore some doctors may knowingly withhold

information because they know they are immune from

suit, a woman might be deprived of full information, and

therefore the statute has the potential effect of unduly

burdening the ability to choose an abortion. To us, this

possible scenario is too tenuous to hold that the statute

has the effect of placing a substantial obstacle in the path

of a woman who seeks an abortion.

723 The statute does nothing to hinder a woman

who has made the decision to abort a fetus. The Act did

not hinder Marie from aborting Mary Lorraine. Irrespec-

~tive of the information provided by the doctor, and regard-

less of the doctor’s motivation or intent, had she decided

to, she could have aborted the unborn child with no

obstruction placed in her way by the statute. Granted, the

statute may, given the scenario offered by plaintiffs,

immunize some doctors who decide to withhold informa-

tion from certain types of claims; but if a woman wishes to

abort her unborn child, the statute places no limitation on

her right to do so. Had Ms. Wood decided to abort her

unborn child, though, the statute would not have been a

stumbling block burdening her ability to abort.

724 Nevertheless, assuming that the statute does, in

effect, place an obstacle in the way of obtaining an abor-

tion by creating a situation that permits anti-abortion

doctors to withhold information that they believe would

influence a woman to abort her unborn child, we are not

persuaded that such an obstacle is one that unduly bur-

dens the ability of a woman to obtain an abortion. By

prohibiting lawsuits in which plaintiffs allege that but for

App. 19

the negligence of a health care professional or organization

the plaintiffs would have aborted a nonviable fetus, we

recognize that the statute creates a safe harbor from

certain tort actions for doctors who conduct genetic tests

and withhold information. These doctors cannot be subject

to some suits for withholdirg information because their

patients cannot bring a claim that but for the actions of

the doctor withholding material information, they would

have aborted the unborn child. Just because the statute

may permit such a situation to occur, however, does not

convince us that the statute has the effect of unduly

burdening the ability of a woman to receive an abortion.

Such abortion-averse physicians are not completely

immunized from suit. Other causes of action are still

available for withholding information. Breach of contract,

for example, and other tort claims that do not necessarily

allege that but for the act or omission of the doctor the

mother would have aborted, may be raised. Moreover,

physicians are still accountable for withholding informa-

tion as they risk professional discipline, including the loss

of their license to practice medicine. The statute does not

license doctors to withhold information from patients. We

disagree with plaintiffs’ assumption; just because one

cannot sue her physician for wrongful birth — that but for

the act or omission of the doctor the unborn child would

have been aborted — does not necessarily mean that

physicians who disfavor abortion are insulated from

accountability, able to withhold information without

adverse ramifications, and therefore inclined not to reveal

information that would likely influence a woman to abort

an unborn child. See Hickman v. Group Health Plan, Inc.,

396 N.W.2d 10, 16-17 (Minn. 1986) (Simonett, J., concur-

ring specially, joined by Kelly, J., and Coyne, J.) (discuss-

ing why the absence of a tort deterrent to malpractice does

App. 20

not necessarily mean doctors will practice less carefully

nor does the absence necessarily constitute an intrusion

into a person’s constitutional right to choose whether or

not to have an abortion). Moreover, the legislation likely

has no such effect upon physicians who do not disfavor

abortion.

725 Of note to us is that when the Supreme Court

declared unconstitutional the spousal notification statute

in Casey and the partial birth abortion statute in Stenberg,

the Court gave considerable weight to scientific literature

and statistical studies demonstrating the effect the legisla-

tion had on abortion rates. The studies supported factual

findings made by the trial courts that the respective

statutes had the effect of imposing a substantial obstacle.

The Court noted in Casey that the district court’s findings

of fact, indicating that women were unlikely to avail

themselves of the statutory exceptions to spousal notifica-

tion, were supported by scientific studies of domestic

violence. Planned Parenthood v. Casey, 505 U.S. 833, 891

(1992). The Court was persuaded that, based on the

extensive scientific and statistical research, because

women were unlikely to avail themselves of the exceptions

to spousal notification, the exceptions were, in effect,

essentially meaningless. See id. at 895. In Stenberg, the

Court struck down a Nebraska law banning one method of

abortion based on scientific statistical studies showing

that the ban could have created significant health risks for

women who seek abortions. Stenberg v. Carhart, 530 U.S.

914, 923-32 (2000). In contrast, neither this court nor the

trial court has been presented with anything more than

plaintiffs’ allegation that their physician withheld infor-

mation to persuade us that the effect plaintiffs propose —

physicians who disfavor abortion are likely to withhold

App. 21

information — is, in effect, an obstacle to obtaining an

abortion. The trial court was never presented with any

evidence demonstrating the effect the statute has on

abortions. Plaintiffs have not presented us with any

scientific or statistical support for their argument that the

statute necessarily has the effect of burdening the ability

of a woman to obtain an abortion. In short, plaintiffs have

not sufficiently persuaded us that the statute has the

effect of placing a substantial obstacle in the path of a

woman seeking an abortion.

926 Finally, other statutes that, in our view, impose

greater burdens on the right of a woman to choose to abort

an unviable fetus, have been upheld as constitutional.

Legislation requiring, except in a medical emergency, a

physician or qualified nonphysician to inform a woman at

least 24 hours before performing an abortion of the avail-

ability of printed materials regarding childbirth, child

support, and adoption, as well as requiring a woman to

certify in writing that she was informed of the availability

of the materials and was provided them if desired, was not

an undue burden. Casey, 505 U.S. at 881-87. Legislation

requiring, except in a medical emergency, an unemanci-

pated minor to obtain parental consent, with a judicial

approval exception to parental approval, before obtaining

an abortion was not an undue burden. Casey, 505 U.S. at

899. To us, this legislation upheld as not unduly burdening

a woman’s right to choose placed a more substantial

obstacle in a woman’s path to receive an abortion than

does the instant legislation prohibiting actions for wrong-

ful birth. Accordingly, we conclude that section 78-11-24

does not place a substantial obstacle in the path of a

woman seeking an abortion of a nonviable fetus.

errr

App. 22

427 Moreover, the legislation in this case is far less

of an obstacle to obtaining an abortion and materially

different from the legislation declared unconstitutional in

Stenberg v. Carhart, 530 U.S. 914 (2000). The legislation

in Stenberg prohibited any “partial birth abortion” unless

that procedure was necessary to save the mother’s life,

and it mandated that violation of the statute by a physi-

cian resulted in a felony and mandatory revocation of the

physician’s license to practice medicine. 530 U.S. at 922.

— The legislation in Stenberg clearly intended to curtail a

woman’s ability to obtain an abortion, expressly banning a

method of abortion. See id. at 923. The Utah Wrongful Life

Act, on the other hand, has no intent to curtail a woman’s

ability to abort a fetus; it prohibits wrongful birth lawsuits

after a woman has, in lieu of aborting the fetus, given

birth to a child. The Stenberg legislation lacked a medical

emergency exception, an exception to the prohibition on

partial birth abortion permitting physicians to perform the

procedure “‘where it is necessary, in appropriate medical

judgment for the preservation of the life or health of the

mother.” Id. at 931 (quoting Casey, 505 U.S. at 879). The

Utah Wrongful Life Act did not include a medical excep-

tion because it had no intent to infringe upon the ability of

a woman seeking an abortion to obtain one. The U.S.

Supreme Court determined that because of the Stenberg

legislation, some prosecutors “may choose to pursue

physicians who use ... the most commonly used method

for performing previability second trimester abortions,”

and as a result “[aJll those who perform abortion proce-

dures using that method must fear prosecution, conviction,

and imprisonment” resulting in “an undue burden upon a

woman’s right to make an abortion decision.” Id. at 945.

The Utah Wrongful Life Act, on the other hand, even

though it might result in physicians being immune from

App. 23

some suits, does not, as a result, permit physicians to

withhold information with impunity. The Utah Wrongful

Life Act does not inhibit the woman’s ability to choose to

abort an unviable fetus regardless of the accuracy or

quality of the medical advice she receives.

- 428 In sum, although the statute may create a safe

harbor for doctors who withhold information from some

patients, the statute does not unduly burden the ability of

a woman who wishes to obtain an abortion. The statute

does not place any obstacle in the path of a woman who

wants to abort an unborn child. Further, even though the

possibility exists that a doctor may withhold information

and not be subject to certain claims, this potential obstacle

is not so substantial that it unduly burdens the right of a

woman to choose to terminate a pregnancy.

B. Utah Due Process

q29 For the reasons given above under the federal

due process analysis, we conclude that the statute does not

violate the Utah Due Process Clause, Utah Const. art. I,

§ 7. At this time we do not interpret the Utah Constitution

to give any further protection to plaintiffs than does the

federal constitution. We note that our state constitution

may, under some circumstances, provide greater protec-

tions for our citizens than are required under the federal

constitution. Nevertheless, in this instance, we find no

compelling need to interpret the Utah Constitution differ-

ently from the United States Constitution.

III. EQUAL PROTECTION

730 Plaintiffs assert the statute violates the federal

and state Equal Protection guarantees. According to the

App. 24

plaintiffs, the statute employs classifications that burden

the fundamental right to choose an abortion. The statute

“singles out the group of parents employing the procrea-

tive decision making process whose decision would involve

abortion.” According to plaintiffs, this classification “tar-

get[ing] those who would choose abortion,” is not narrowly

tailored to achieve a legitimate state interest. The Medical

Center insists the statute does not violate equal protection

principles because the plaintiffs in this case claiming

wrongful birth are not similarly situated to other plaintiffs

who claim wrongful pregnancy. The Medical Center avers

that the plaintiffs in wrongful pregnancy cases never

wanted to become parents, but that parents in wrongful

birth cases did want to become parents, just not parents of

a disabled child. The Medical Center further argues that

even if the groups are similarly situated, the statute was

narrowly tailored to achieve the stated legislative purpose

of respecting life.

A. Federal Equal Protection

731 We hold that the Utah Wrongful Life Act does

not present equal protection problems and therefore does

not violate the Equal Protection Clause. The Act does not

involve a suspect or quasi-suspect classification. See

Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 14

(Minn. 1986). Plaintiffs allege that the statute “singles

out” those who choose to abort an unviable fetus, treating

them differently from those who would not so choose. The

Supreme Court has not recognized as a suspect or quasi-

suspect class, however, persons who choose to abort an

unborn child. Because plaintiffs are not a protected class,

we conclude that the Equal Protection Clause does not

apply to this case.

App. 25

B. Utah Equal Protection / Uniform Operation of Laws

q32 Although plaintiffs assert both state and federal

equal protection violations, plaintiffs do not offer any

different considerations or arguments to distinguish the

state guarantee from the federal one. Further, while

plaintiffs couch their Utah equal protection argument and

Uniform Operation of Laws argument as two separate

arguments, we consider them as one argument because

the Uniform Operation of Laws provision is, in fact, the

Utah equal protection guarantee.

433 This court has repeatedly considered Article I,

section 24, the Uniform Operation of Laws Clause, to be

the Utah analogue to the federal due process guarantee.

See, e.g., Kennecott Corp. v. State Tax Comm'n, 858 P.2d

1381, 1388-89 (Utah 1993) (treating article I, section 24

and Equal Protection Clause as the same); Greenwood v.

North Salt Lake, 817 P.2d 816, 820 (Utah 1991) (“Article

I, section 24] of the Utah Constitution and the equal

protection clause of the Fourteenth Amendment ‘embody

the same general principle: persons similarly situated

should be treated similarly, and persons in different

circumstances should not be treated as if their circum-

stances were the same.’”) (quoting Malan v. Lewis, 693

P2d 661, 669 (Utah 1984)); Condemarin v. Univ. Hosp.,

775 P2d 348, 352-56, 369, 379-88 (Utah 1989). However,

as we stated in Malan, “[t]he different language of Article

I, [section] 24, the different constitutional contexts of the

two provisions, and different jurisprudential considera-

tions may lead to a different result in applying equal

protection principles under Article I, [section] 24 than

might be reached under federal [equal protection] law.”

693 P.2d at 670. Moreover, while case law developed under

the Fourteenth Amendment may be persuasive in applying

—

cits —_ = —

App. 26

article I, section 24, such law is not binding on the state as

long as we do not reach a result that violates the federal

equal protection clause. Id.

q34 Article I, section 24 of the Utah Constitution

provides, “All laws of a general nature shall have uniform

operation.” Under article I, section 24, a two-part test is

necessary to ensure the uniform operation of the laws:

“First, a law must apply equally to all persons within a

class. Second, the statutory classifications and the differ-

ent treatment given the classes must be based on differ-

ences that have a reasonable tendency to further the

objectives of the statute.” Malan v. Lewis, 693 P.2d 661,

670 (Utah 1984) (citations omitted).

435 Having explained the difference between federal

equal protection and the Utah Uniform Operation of Laws

Clause, and having set forth the Uniform Operation of

Laws analytical framework, we nevertheless simply hold

that we do not recognize persons who choose to have an

abortion, as opposed to those who choose not to, to be a

class for purposes of the Uniform Operations of Law

analysis. At the present we see no reason why persons who

would make a particular choice — abortion in this case —

should, for constitutional purposes, be recognized as a

class and treated any differently from those who would

choose otherwise. The right to obtain an abortion, the

right asserted by plaintiffs and upon which they claim

exercise of should entitle them to additional protection as

a class, is properly within the realm of substantive due

process, not equal protection. Therefore, we conclude that

the Uniform Operation of Laws provision is inapplicable to

this case.

App. 27

IV. PLAINTIFFS’ CLAIMS FOR NEGLIGENT

INFLICTION OF EMOTIONAL DISTRESS AND

FAILURE TO OBTAIN INFORMED CONSENT

ARE BARRED BY THE ACT

q36 Plaintiffs claim the district court erred in

dismissing their claims for negligent infliction of emo-

tional distress and lack of informed consent as barred by

the Utah Wrongful Life Act because, they claim, neither

requires proof that plaintiffs would have aborted the child.

We conclude that plaintiffs’ claims of negligent infliction of

emotional distress and lack of informed consent, as pled,

are indeed barred by the Utah Wrongful Life Act. We do

not decide, however, whether all claims for negligent

infliction of emotional distress and lack of —

consent are barred by the Act.

137 Plaintiffs’ allegations of negligent infliction of

emotional distress and lack of informed consent have been

pled, and cannot be maintained without their argument

that but for the act or omission of the Medical Center,

Marie would have chosen to abort Mary Lorraine. Indeed,

plaintiffs’ essential claim, from which these remaining

claims flow, is that they were deprived of the opportunity

to choose whether or not to abort Mary Lorraine. The

claim for negligent infliction of emotional distress “re-

aver[s] all allegations previously stated,” which include

plaintiffs’ claims that the Medical Center negligently

failed to provide plaintiffs with sufficient information to

make an informed decision whether to abort,-that because

of this negligence Mary was “wrongfully born afflicted

with Down Syndrome, and will suffer the effects of that

syndrome for the remainder of her natural life,” that they

incurred the cost of labor and delivery, they are incurring

unwanted medical and other expenses related to the care

é |

}

App. 28 /

of Mary, and that they will be “unable to live ordinary %

due to the increased attention Mary Lorraine will require.”

Plaintiffs’ claim for failure to obtain informed consent “re-

aver(s] all allegations previously stated,” those discussed

above, and further insists that “[a] reasonable, prudent

person or persons in Plaintiffs’ position would not have

consented to the health care rendered after having been

fully informed as to all facts relevant to the decision to

give consent.” With this claim plaintiffs again specifically

allege they were “denied the opportunity to make an

informed decision as to the medical care they would

receive, and as to the continuation of the pregnancy,” and,

as a result, they suffer “mental anguish and distress, loss

of consortium, costs associated with labor and delivery,

extraordinary medical and other related expenses, and the

right to lead a normal life.” Plaintiffs’ causes of action as

pled clearly request damages to compensate them for not

being able to choose to abort Mary Lorraine. The Act bars

such claims.

CONCLUSION

438 The Utah Wrongful Life Act does not violate the

Open Courts Clause, the United States or the Utah Due

Process Clauses, the United States Equal Protection

Clause, or the Utah Uniform Operation of Laws provision,

and we therefore uphold the Act as constitutional. Plain-

tiffs’ claim for wrongful birth necessarily includes the

allegation that but for the act or omission of the Medical

Center, plaintiffs would have aborted Mary Lorraine, and

is therefore barred by the Act. Plaintiffs’ other claims, as

pled, also include the allegation that but for the act or

omission of the Medical Center, the plaintiffs would have

aborted Mary Lorraine, and are therefore also barred by

App. 29

the Act. Accordingly, the decision of the district court is

affirmed.

q39 Associate Chief Justice DURRANT concurs in

Justice WILKINS’ opinion.

440 Justice HOWE concurs in the result in parts II

and III of Justice WILKINS’ opinion.

dissenting:

41 I respectfully dissent from the holding of the

court \on the constitutionality of the Act, and note that

Part I\of this opinion on the standard of review, having

been joined by Justices Howe and Russon, reflects the

majority view on that issue.

442 Additionally, I note a serious flaw in the lead

opinion’s analysis of the article I, section 11 argument.

While the majority of this court upholds a heightened

standard of review when section 11 is implicated, the lead

opinion has actually analyzed the Utah Wrongful Life Act

under/a standard that it characterizes as “resolving any

reasonable doubts in favor of constitutionality[.]” Maj. Op.

at 8. This further undermines the legal analysis in this

decision and the lead opinion’s conclusion that the Act is

constitutional.

I. STANDARD OF REVIEW

443 In a brief, two-paragraph analysis, the lead

pinion has abandoned our carefully crafted and long

eee analytic model in article I, section 11 cases. The

App. 30

presumption of constitutionality referred to by the lead

opinion is a blunt instrument determinative only in cases

where no significant constitutional right is claimed to have

been abrogated by a statute. The opinion claims that

article I, section 11 rights are “no more important and

[have] no greater weight as a constitutional provision than

other constitutional provisions.” The lead opinion’s rejec-

tion of a heightened level of scrutiny overlooks the fact

that article I of the Utah Constitution, known as the

“Declaration of Rights,” contains affirmative guarantees of

specific individual rights that are indeed fundamental.

Article I, section 11 rights are no more important than

other article I rights, but a cursory examination of the

subjects treated therein reveals that most, if not all, of

these rights have generated some form of heightened

judicial scrutiny. A mere rational basis is insufficient for

the legislature to intrude upon or eliminate religious

liberty,’ habeas corpus, see, @.g., Currier v. Holden, 862

P2d 1357, 1363-65 (Utah Ct. App. 1993), the right to bear

arms, due process of law, see, e.g., Condemarin v. Univ.

Hosp., 775 P.2d 348, 356 (Utah 1989), In re Boyer, 636 P.2d

1085, 1087-88 (Utah 1981), the rights of accused persons,

‘ In Soc’y of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993),

for example, we noted that there is a burden on one who challenges a

law on constitutional grounds: “The act is presumed valid and we

resolve any doubts in favor of constitutionality.” Id. at 920. However,

the actual analysis undertaken by the court in that case cannot be

characterized as anything but heightened scrutiny, given the impor-

tance of the “Utah Constitution’s religious and conscience provisions,

read in light of the history of the religious conflict that marked the

years Utah struggled to become a self-governing state.” Id. at 940. As

we stated, “Government is not to prefer religion to nonreligion, but

neither should it be hostile to religion. Religious exercise is to be

unfettered, and freedom of conscience is to be supreme.” Id.

App. 31

see, e.g., In re Criminal Investigation, 7th Dist. Ct., 754

P2d 633, 640 (Utah 1988), unreasonable searches and

seizures, see, e.g., Allen v. Trueman, 100 Utah 36, 57, 110

P2d 355, 365 (Utah 1941) (Wolfe, J., concurring), freedom

of speech and of the press, see e.g., West v. Thomson

Newspapers, 872 P.2d 999, 1019 (Utah 1994), Kearns-

Tribune Corp. v. Lewis, 685 P.2d 515, 521 (Utah 1984), or

the protection against taking private property for public

use without compensation, see e.g., Colman v. Utah State

Land Bd., 795 P.2d 622, 631. Notwithstanding the pre-

sumption of constitutionality we give to statutes, this

court has consistently applied various forms of heightened

review when article I rights are at issue. The standard of

review we have developed in section 11 cases is entirely

consistent with that approach and the lead author offers

no rationale for changing that standard, although it is

clear from his dissent in Laney v. Fairview City, 2002 UT

79, 1 87, 57 P.3d 1007, that he does not regard article I,

section 11 as having any substantive content.

444 By contrast, our jurisprudence for many decades

on this issue has provided a wealth of justification for the

standard we have employed. As was stated in Allen, 100

Utah at 57, 110 P2d at 365, “[mJoreover, a court will

exercise stricter scrutiny in evaluating measures that

encroach upon civil liberties than it will with respect to

statutes that impact what can-be-characterized as only

economic interests.” (Wolfe, J., concurring). In Berry ex rel.

Berry v. Beech Aircraft Corp., 717 P.2d 670, while ac-

knowledging the legislature’s wide latitude in “defining,

changing, and modernizing the law,” with the result at

times being the creation of new legal rules and the abroga-

tion of old ones, id. at 676, we stated “the basic purpose of

Article I, section 11 is to impose some limitation on that

App. 32

power for the benefit of those persons who are injured in

their persons, property, or reputations since they are

generally isolated in society, belong to no identifiable

group and rarely are able to rally the political process to

their aid.” Id. (citation omitted). The limitations placed on

the legislature are especially important when it comes to

protecting “important individual rights against legislative

power” as was intended by the framers who placed article

I, section 11 in the Utah Constitution. Horton v. Gold-

miner’s Daughter, 785 P.2d 1087, 1093 (Utah 1989).

“445 Article I, section 11 imposes limits on the

legislature to protect injured persons who are isolated in

society and lack political influence by guaranteeing them

access to the courts. Berry, 717 P2d at 676. It does not

guarantee individuals “particular, identifiable causes of

action as such, but. . . the availability of legal remedies for

vindicating the great interest that individuals in a civi-

lized society have in the integrity of their persons, prop-

erty, and reputations.” Id. at 677 n.4. This court has

recognized that “a plain reading” of article I, section 11

“establishes that the framers of the Constitution intended

that an individual could not be arbitrarily deprived of

effective remedies designed to protect basic individual

rights.” Horton at 1090 (citing Berry, 717 P.2d at 675). In

fact, the drafters of the Utah Constitution understood that

the “normal political processes would not always protect

the common law rights of all citizens to obtain remedies

for injuries.” Laney, 2002 UT 79 at 4 40 (citing Berry, 717

P2d at 676). This court has also held that “[a] constitu-

tional guarantee of access to the courthouse was not

intended by the founders to be an empty gesture[.]” Berry,

717 P.2d at 675.

App. 33

446 Contrary to the position taken by the lead

opinion, this court has consistently rejected the presump-

tion of constitutionality of statutes challenged under the

remedies clause of article I, section 11. Justice Stewart

reasoned that to presume constitutionality when statutes

deprive individuals of access to the courts “is to fail to give

any greater weight to a constitutional right than to a

nonconstitutional interest, such as a general social or

economic interest.” Condemarin, 775 P.2d at 370 (Stewart,

J., separate opinion) Justice Zimmerman characterized the

nature of the review this way: “Because the interests at

stake are specifically protected by the constitution, the

presumption of validity that normally attaches to legisla-

tive action must be reversed once it is shown that the

enactment under scrutiny does, in fact, infringe upon the

interests enumerated in article I, section 11.” Id. at 368

(Zimmerman, -!., concurring in part).

447 In its rejection of a heightened level of scrutiny

for article I, section 11 challenges, the lead opinion rejects

long-standing precedent. Furthermore, it opens questions

about the standards this court has applied to review

challenges to all article 1 rights. I believe this approach is

incorrect and unwise.

448 The lead opinion cites three cases for its asser-

tion that a presumption of constitutionality is the applica-

ble standard of review, none of them relevant in my view.

The first case is Zamora v. Draper, 635 P.2d 78 (Utah

1981), where the court actually used article I, section 11 to

avoid a statute depriving a plaintiff of access to the court

in some circumstances. Jd. at 80. In Zamora, this court did

not strike the statute on its face, but did use article I,

section 11 to interject a “higher principle[ ] of justice” that

provided the plaintiff a remedy that he would not have

App. 34

had under the statute alone. Jd. at 81. In essence, the

court found the statute unconstitutional as applied under

article I, section 11. As Zamora stated:

There are certain principles of law relating to the

validity of statutes which have a bearing on the

problem of constitutionality here presented. The

first and foundational one is that the prerogative

of the legislature as the creators of the law is to

be respected. Consequently, its enactments are

accorded a presumption of validity; and the

courts do not strike down a legislative act unless

the interests of justice in the particular case be-

fore it require doing so because the act is clearly

in conflict with the higher law as set forth in the

Constitution.

Id. at 80 (emphasis added) (citations omitted).

449 The other cases cited by the lead opinion either

did not deal with article I, section 11, or, in the case of

Lindon City v. Engineers Const. Co., 636 P.2d 1070 (Utah

1981), actually undertook a review of the constitutionality

of the Arbitration Act, notwithstanding the observation

that “(1) plaintiff does not support the point [on constitu-

tionality] by any substantial meritorious argument, and

(2) that many of our sister state courts have held similar

acts to be constitutional.” Jd. at 1073. The presumption

language in that case goes merely to the point that the

burden of convincing the court of unconstitutionality lies

with the challenger, not to the conclusion that the legisla-

ture needs no more than a minimal reason for overriding a

constitutional guarantee.

950 Although this court has not recognized the

guarantee included in article I, section 11 as “fundamen-

tal,” as Justice Zimmerman has noted, “I do not think we

App. 35

intended to denigrate the importance of the rights pro-

tected from legislative abridgement by article I, section

11.” Condemarin, 775 P.2d at 367 (Zimmerman, J., concur-

ring in part). This court has wisely avoided the “analytical

straitjacket” of federal equal protection analysis by avoid-

ing a rigid test that dictates that some rights are funda-

mental and others are not. Id. Instead, regarding article I,

section 11 rights, this court should examine in an indi-

vidualized inquiry whether a legislative enactment denies

a litigant “a remedy by due course of law” in order to

determine whether article I, section 11 applies to the case

at hand. Horton, 785 P-2d at 1090 (citing Berry, 717 P.2d at

675).

JI. ARTICLE I, SECTION 11

q51 Article I, section 11 of the Utah Constitution,

states that

All courts shall be open, and every person, for an

injury done to him in his person, property or

reputation, shall have a 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. :

452 This clear language “guarantees access to the

courts and a judicial procedure that is based on fairness

and equality,” and prevents arbitrary deprivation of

“effective remedies designed to protect basic individual

rights.” Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d

670, 675 (Utah 1985). This clause is not an “empty ges-

tuic,” but was intended to guarantee a judicial remedy for

injury to one’s person, property or reputation. Id.

App. 36

453 The constitution leaves room for the legislature

to define, change and modernize the law, but article I,

section 11 limits the legislature’s power to eliminate a

remedy unless the legislation is consistent with the two-

part standard established in Berry. 717 P.2d at 675-76

(recently upheld in Laney v. Fairview City, 2002 UT 79, 57

P3d 1007). First, the law must provide the injured person

“an effective and reasonable alternative remedy ‘by due

course of law’ for vindication of his constitutional interest.”

Berry, 717 P.2d at 675-76. This benefit must be “substan-

tially equal in value or other benefit to the remedy abro-

gated in providing essentially comparable substantive

protection to one’s person, property, or reputation, al-

though the form of the substitute remedy may be differ-

ent.” Id. at 680 (citations omitted). Second, if there is “no

substitute or alternative remedy provided, abrogation of

the remedy or cause of action may be justified only if there

is a clear social or economic evil to be eliminated and the

elimination of an existing legal remedy is not an arbitrary

or unreasonable means for achieving the objective.” Id.

q54 The Utah Wrongful Birth Act (the “Act”), en-

acted in 1983, states in part 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 permit-

ted to have been born alive but would have been aborted.”

Utah Code Ann. § 78-11-24 (2002). The constitutionality of

this Act must be reviewed under the Berry test.

955 The first step in deciding whether the Act

violates the constitutional guarantee of a remedy is to

determine whether the Act abrogated an existing legal

remedy. Berry, 717 P.2d at 677 n. 4, 680; Day v. State ex

rel. Dep't. of Pub. Safety, 1999 UT 46, J 38, 980 P.2d 1171,

App. 37

1184. Therefore, the question is whether a legal remedy

for wrongful birth existed in Utah in 1983 when the Act

was passed.

956 In this inquiry, the majority opinion rejects

plaintiffs’ argument that the Act abolished the right to

claim negligence against a medical provider who_ gives

erroneous medical advice to a patient who, based on that

erroneous advice, decides to proceed with a pregnancy and

then delivers a disabled child. The majority concludes that

the Act did not abolish an existing legal claim or remedy. I

disagree. The majority opinion has ignored the fact that

article I, section 11 is “not concerned with particular,

identifiable causes of action, but rather with the availabil-

ity of legal remedies to vindicate individuals’ interests in

the integrity of their persons, property and reputations.”

Currier v. Holden, 862 P.2d 1357, 1360-1 (Utah Ct. App.

1993), cert. denied, McClellan v. Holden, 870 P.2d 957

(Utah 1994) (quoting Berry, 717 P.2d at 677 n.4); see also

Craftsman Builder’s Supply v. Butler Mfg., 1999 UT 18,

q 53, 974 P.2d 1194, 1209 (Stewart, J., concurring) (noting

“Section 11 protects a citizen’s right to a remedy rather

than causes of action as such[.]”) (emphasis added).

957 Here, plaintiffs were injured in person and

property. First, their personal right to make informed,

lawful decisions regarding medical treatments and proce-

dures as subverted by the admitted negligence of the

defendant. Second, the Act has precluded them from

pursuing any remedy for that harm. The right to be

compensated for a personal injury is a property right that

requires access to the courts for enforcement. Condemarin

v. Univ. Hosp., 775 P.2d 348, 354, 360 (Utah 1989). The

label placed on an injury is not its most important charac-

teristic. It is irrelevant what the exact injury is called if it

App. 38

causes injury to person and property. This court’s inquiry

should not be so superficial as to begin and end with

whether or not, on the day the Act was passed, there was a

specific cause of action entitled “wrongful birth.” The

inquiry must focus on the nature of the harm and the

recognition that it was, and is, cognizable at law. There-

fore, the court should not focus merely on the “wrongful

birth” label, but rather on legal remedies vindicating the

right to receive correct and complete medical information

in relation to pregnancy-related choices. For example, if

the Act eliminated the right to sue for negligent treatment

in all open heart procedures, or for failure to obtain

informed consent in the course of heart treatment, no one

would be likely to argue that “heart-related malpractice

claims” were a special category of injury. The question

_ here is whether the plaintiffs have a fundamental legal

remedy for harm caused by another’s negligence. Whether

the injury is labeled negligence leading to the loss of an

informed decision (medical malpractice) or inability to

terminate the pregnancy (wrongful birth) is irrelevant.

Both constitute injuries that necessitate the availability of

legal remedies, and therefore access to the courts, to

vindicate a lawful interest.

958 The “wrongful birth” cause of action is nothing

more than a legal remedy for medical malpractice based

on negligence. Payne ex rel. Payne v. Myers, 743 P.2d 186,

188-89 (Utah 1987) (stating that “[iJn an action for wrong-

ful birth, the plaintiff has the burden of establishing”

traditional elements of negligence). In fact, many courts

have recognized “wrongful birth” as a simple medical

malpractice claim, resulting from negligence. See Bader v.

Northwest Indiana Genetic Counseling, Inc., 732 N.E.2d

1212, 1216 (Ind. 2000) (stating that it is unnecessary to

App. 39

“characterize the cause of action here as ‘wrongful birth’

since labeling the cause of action as ‘wrongful birth’ adds

nothing to the analysis, inspires confusion and implies the

court has adopted a new tort”) (emphasis added); Garrison

v. Med. Ctr. of Delaware, Inc., 581 A.2d 288, 290 (Del.

1990) (the cause of action need not be characterized as

“wrongful birth” since it falls within the realm of tradi-

tional tort and medical malpractice law); Arche v. U.S.

Dept. of Army, 798 P.2d 477, 479 (Kan. 1990) (applying

medical malpractice and a negligence analysis, with

standard elements of negligence, to wrongful birth claim);

Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 493 (Wash.

1983) (en banc) (holding action for wrongful birth “fits

within the conceptual framework of our law of negli-

gence”).

_ 459 The majority opinion notes that this court has

acknowledged that. “other states that had considered

wrongful birth claims were almost unanimous in their

recognition of a cause of action where it was alleged that

but for negligence, the parents would have terminated a

pregnancy.” Maj. Op. at 7 14. (citing C.S. v. Nielson, 767

P.2d 504, 506 n.4 (Utah 1988); Payne, 743 P.2d at 188-89

n.5). However, the majority opinion does not acknowledge

that in a 1988 decision, five years after the Act was passed

in 1983, this court assumed, albeit without specifically

deciding, that a wrongful birth cause of action already

existed in Utah. Payne, 743 P.2d at 188 n.5. In Payne,

plaintiffs alleged wrongful birth and the court found that a

duty existed that the doctors may have breached in provid-

ing negligent medical advice regarding potential birth

defects of a fetus. Jd. at 189-90. After finding a duty and a

possible breach, this court concluded that the “[pJarents

had a remedy against the state defendants for injuries

App. 40

arising out of the negligent acts of State employees.... ”

Id. at 190. Finally, this court held that “the parents were

not denied the guarantees of article I, section 11 because

[when their wrongful birth claim arose] they still had an

opportunity to seek redress in the courts.” Id. (emphasis

added). Specifically, the Payne court observed that the

parents in that case “had a remedy against the ... defen-

dants for injuries arising out of .. . negligen[ce],” i.e., their

claim for wrongful birth, but that their failure to follow

procedural requirements extinguished the claim. “Had —

they [given timely notice of claim], they might have

obtained judgment. .. . ” Id.

460 The court in Payne expressly held that a duty

existed in the parental counseling context. Justice Howe,

for a unanimous court, wrote:

The increased ability of health care professionals

to predict and detect the presence of fetal defects

and the capacity to assess risk factors associated

with unborn and even unconceived children have

considerably enhanced the importance of genetic

counseling.... Courts accordingly have recog-

nized that physicians who perform testing and

provide advice relevant to the constitutionally

guaranteed procreative choice ... have a corre-

sponding obligation to adhere to reasonable

standards of professional performance.

Id. at 189 (emphasis added).

461 Even after the Act was passed, courts, including

Utah’s Court of Appeals, have concluded that Payne

implicitly recognized the cause of action for wrongful birth

as a logical extension of mainstream medical malpractice

law. Payne, 743 P.2d at 188 n.5. See State v. Shipler, 869

P.2d 968, 970 (Utah Ct. App. 1994) (noting that in Payne,

App. 41

this court held that “in an action for wrongful birth ... ,

the Utah Supreme Court held that the causes of action did

not accrue until the birth of the gravely ill child[.]”); Arche

v. U.S. Dept. of Army, 798 P.2d 477, 479 (Kan. 1990) (citing

Payne for the proposition that Utah recognizes wrongful

birth causes of action). Regardless of whether this court

explicitly held that “wrongful birth exists in Utah,” this

court did state that the plaintiffs could have brought their

wrongful birth cause of action in that case, had their claim

been timely. Id.

~ 62 In addition, Utah has joined the majority of

jurisdictions that have recognized an action for the closely

related claim for wrongful pregnancy. “Wrongful preg-

nancy” denotes parents “bring[ing] a claim on their own

behalf for the monetary and emotional damages they

suffered as a result of giving birth to a normal and healthy

but unplanned and unwanted child.” C.S. v. Nielson, 767

? The court in Nielson distinguished between wrongful pregnancy,

wrongful life and wrongful birth actions in the following way:

‘Wrongful pregnancy,’ or ‘wrongful conception’ as it is occa-

sionally termed, refers to those cases where parents bring a

claim on their own behalf for the monetary and emotional

damages they suffered as a result of giving birth to a normal

and healthy but unplanned and unwanted child. Such ac-

tions are usually based upon a negligently performed or

counseled sterilization procedure or abortion, or negligence

in preparing or dispensing a contraceptive prescription. ...

‘Wrongful birth,’ on the other hand, refers to the cause of ac-

tion whereby parents claim they would have avoided con-

ception or terminated an existing pregnancy by abortion but

for the negligence of those charged with, among other

things, prenatal testing or counseling as to the likelihood of

giving birth to a physically or mentally impaired child.

‘Wrongful life’ is the corresponding action by or on behalf

of an impaired child alleging that but for the medical

(Continued on following page)

App. 42

P.2d 504, 506 (Utah 1988) (citations omitted). Such actions

are based upon a “negligently performed or counseled

sterilization procedure or abortion, or negligence in pre-

paring or dispensing a contraceptive prescription.” Id. at

506. In Nielson, the court also noted that courts “have

been almost unanimous in their recognition of a [wrongful

birth] cause of action against a physician or other health

care provider where it is alleged that but for the defen-

dant’s negligence the parents would have terminated the

congenitally or genetically defective fetus by abortion.” Jd.

at 506 n.4. Nielson did not except Utah from that list.

q63 Assuming, arguendo, that it is unclear whether

in 1983 this court recognized a “wrongful birth” cause of

action, we must examine whether a broader claim for

medical malpractice existed in Utah in 1983 that vindi-

cated the same rights. I conclude that it did. Wrongful

birth is a garden-variety medical malpractice claim requir-

ing the usual elements of negligence. There is no question

that a claim for medical malpractice existed in 1983 for

medical malpractice based on negligence. See Reiser v.

Lohner, 641 P.2d 93, 98 (Utah 1982) (“It is a settled rule

that the physician must inform the patient of all substan-

tial and significant risks that may occur before operating

on him ... and the resultant injury must have been

proximately caused by the procedure administered”).

Thus, a claim for medical malpractice that vindicated the

professional’s negligence, the child would not have been

born to experience the pain and suffering associated with

his or her affliction or impairment.

C.S. v. Nielson, 767 P.2d 504, 506 (1988) (citations omitted).

App. 43

same rights as a “wrongful birth” cause of action was

recognized in 1983 and is protected by the constitution.

964 The next inquiry is whether the Act provides an

effective and reasonable alternative remedy for the rem-

edy eliminated. Under the first prong of the Berry test,

article I, section 11 “is satisfied if the law provides an

injured person an effective and reasonable alternative

remedy ‘by due course of law’ for vindication of his consti-

tutional interest.” Berry, 717 P.2d at 680. Here, the Act

provides no effective or reasonable alternative remedy. In

fact, unlike Berry, Horton, Sun Valley, and Craftsman (all

article I, section. 11 challenges to statutes based on stat-

utes of limitation or statutes of repose), or Condemarin (an

article I, section 11 challenge based on a liability cap for

medical malpractice), the Act provides no remedy whatso-

ever, completely cutting off an injured plaintiff’s access to

the courts. See Craftsman, 1999 UT 18, {7 19-23; Conde-

marin, 775 P.2d 348; Horton uv. Goldminer’s Daughter, 785

P2d 1087 (Utah 1989); Sun Valley Water Beds of Utah, Inc.

v. Herm Hughes & Son, Inc., 782 P.2d 188 (Utah 1989);

Berry, 717 P.2d 670 (Utah 1985). The majority opinion

acknowledges that the Act may create a “safe harbor” for

doctors from “certain professional malpractice claims.”

Maj. Op. at ¥ 13.

q65 In Nielson this court acknowledged that “[t]he

failure to recognize a cause of action against a physician

who negligently performs surgical sterilization procedures

would be a grant of absolute immunity to a physician

whose negligence results in injury to the patient.” Nielson,

767 P.2d at 506 (citations omitted). The court declined to

grant medical providers such broad immunity and saw “no

reason why a physician who performs such surgery [ster-

ilization] should be held to a lesser standard of care than a

App. 44

physician or surgeon who performs any other surgical

procedure.” Id. at 508. This court also warned that “[s]uch

a ruling could lead to a decrease in the standard of care,

and would leave victims of professional negligence without

a remedy” violating article I, section 11. Id. Nielson’s

reasoning applies equally to plaintiffs’ claims of negligent

testing and counseling.

q66 The only major difference between Nielson and

the instant case is that in Nielson the negligence occurred

in the provision of information about sterilization prior to

birth and in this case the negligence occurred in the

provision of genetic counseling prior to birth. In both

cases, the essence of the claim is that the parents received

negligent medical advice, leading to the birth of a child

who would not have been born but for the negligent

advice. However, under the Act and the majority's holding,

in cases of wrongful pregnancy a plaintiff has a remedy,

whereas in cases of wrongful birth the remedy has been

completely eliminated. This result is unfair; some victims

of medical malpractice have remedies and others do not,

even when the nature of the malpractice and of the inju-

ries is identical. Ms. Nielson knew of her alleged injury

regarding the negligent conveyance of information at the

time she became pregnant, and therefore she could sue.

Ms. Wood, on the other hand, could not know about the

alleged negligently provided information until after she

gave birth, and she cannot. Under the reasoning of the

Nielson court, there is no reason for the discrepancy.

Because no alternative remedies exist for medical negli-

gence resulting in birth of a physically or mentally im-

paired child where the parents were denied information in

the choice to terminate the pregnancy, the Act fails the

first prong of the Berry test.

App. 456

467 The second prong of the Berry test states that “if

there is no substitute or alternative remedy provided,

abrogation of the remedy or cause of action may be justi-

. fied only if there is a clear social or economic evil to be

eliminated and the elimination of an existing legal remedy

is not an arbitrary or unreasonable means for achieving

the objective.” Berry, 717 P.2d at 680. This prong requires

a balancing test “wherein the exigencies associated with

the ‘social or economic’ evils addressed by legislation must

be weighed against the reasonableness of its intrusion

upon personal rights.” Condemarin, 775 P.2d at 360.

Completion of this balancing test requires an examination

of the Act in question as well as an examination of legisla-

tive history.

468 On its face, this act does not identify a social or

economic evil to be eliminated. Where no evil is identified,

the court should look to the “obvious purpose” of the

legislation. Horton, 785 P.2d at 1094; Ross v. Schackel, 920

P.2d 1159, 1166 (Utah 1996). From the language of the Act

and from its history, it is clear that its purpose was to

eliminate or reduce opportunities fox the exercise of the

lawful choice to abort a fetus with a prenatally diagnosed

defect. See Utah Legislative Survey: Wrongful Life and

Wrongful Birth (hereinafter “Wrongful Life”), 1984 Utah L.

Rev. 221, 224 n.747. However, since the right to choose

whether or not to abort is statutorily protected in Utah,

Utah Code Ann. section 76-7-302, as well as part of a

fundamental right to privacy under the United States

Constitution, Planned Parenthood v. Casey, 505 U.S. 833

(1992), it cannot be considered a “social evil” for the

App. 46

purposes of article I, section 11.° Since there is no other

evil identified, the Act does not eliminate a social evil and

does not satisfy the second prong of the Berry test. Addi-

tionally, since there is no evil that was eliminated with the

Act, there is no need to examine whether the elimination

of the existing legal remedy was an arbitrary or unreason-

able means for achieving ‘he objective.

q69 In sum, the Act fails the Berry test. First, it

precludes a remedy for wrongful birth based upon negli-

gence, yet provides no alternative remedy. Second, the Act

attempts to discourage an act that is constitutionally and

statutorily protected by placing a significant burden on its

exercise. The Act therefore violates article I, section 11 of

the Utah Constitution.

III. DUE PROCESS

470 The majority opinion holds that the legislature’s

refusal to permit recovery for wrongful birth is permissible

> However morally reprehensible abortion may be to many people,

for religious or other reasons, the United States Constitution protects

the right of individuals to seek its use for reasons that are sufficient to

the person making the choice. Many would disagree about the morality

of aborting a fetus with a severely defective condition, or a milder one.

Even more ‘would disagree about terminating a pregnancy to avoid

having a child of one gender or the other. The federal constitution does

not permit the state to regulate such personal, individual moral choices,

however. Interestingly, international ethical norms assert that abortion

for gender selection is unethical and a violation of human rights,

whereas there is no similar view of abortion for the prevention of

genetic and other birth defects. See Adrienne Asch, Prenatal Diagnosis

and Selective Abortion: A Challenge, 89 Am. J. Pub. Health 1646 (1999).

App. 47

in that its action does not interfere with federal or state

constitutional due process. I disagree.

A. Federal Due Process

71 Roe v. Wade established a woman’s right to an ©

abortion as a right of privacy founded in the First, Fourth,

Fifth, Ninth, and Fourteenth amendments, as well as in

the penumbra of the Bill of Rights. 410 U.S. 113, 152

(1973). Since Roe, the United States Supreme Court has

held that the right of a woman to terminate her pregnancy

is specially protected by the Due Process Clause. Planned

Parenthood v. Casey, 505 U.S. 833, 846 (1992) (plurality

opinion); Stenberg v. Carhart, 530 U.S. 914 (2000) (adopt-

ing Casey purpose and effect test in majority opinion).

Casey established that a law that infringes on a woman’s

right to abortion is unconstitutional if it has the “purpose

or effect of placing a substantial obstacle in the path of a

woman seeking an abortion of a nonviable fetus.” Casey,

505 U.S. at 877 (emphasis added). An obstacle is substan-

tial if it is “calculated [not] to inform a woman’s free

choice, [but to] hinder it.” Id.

472 The Casey court also noted that a law with such

a purpose would be invalid “because the means chosen by

the State to further the interest in potential life must be

calculated to inform the woman’s free choice, not hinder it.”

Id. at 877 (emphasis added). In fact, the Casey Court

repeatedly emphasized that informed choice was central to

a woman’s liberty interest, going so far as to encourage

legislation “aimed at ensuring a decision that is mature

and informed.” Jd. In short, if a law has an improper

purpose in hindering a woman’s free choice in obtaining an

abortion, such as the Utah Wrongful Life Act, it violates

App. 48

the Due Process Clause of the United States Constitution

and is invalid. Jd. at 877.

473 Here, the purpose of Utah’s Wrongful Life Act is

to discourage and burden a woman's choice to obtain an

abortion; the Act serves to interfere with the provision of

accurate and correct information regarding the health of a

fetus. It also improperly aims to reduce or eliminate

abortion, which becomes obvious when examining its

legislative history.

474 The majority opinion notes that “[t]he statute’s

purpose is not to unduly burden the ability of a woman to

abort an unviable fetus, but to prevent lawsuits for wrong-

ful birth and thereby ‘encourage all persons to respect the

right to life of all other persons.’” Maj. Op. at 7 18 (cita-

tion omitted). It then contends that it “need not examine

the legislative history of thlis] statute to discover the

legislative intent.” Maj. Op. at q 19. It also opines that

“where the legislative purpose is expressly stated and

agreed to as part of the legislation, we do not look to the

views expressed by one or more legislators in floor debates,

committee minutes, or elsewhere, in determining the

intent of the statute.” Id. Therefore the court holds that

the statute is facially constitutional.

975 The majority opinion disregards, in my view, the

appropriate test for determining whether a statute has a

constitutionally improper purpose. While the opinion

correctly states that as a general rule legislative history is

relevant only where statutory language is ambiguous, this

rule does not apply where the purpose of a statute is

alleged to determine its constitutionality. In fact, the

United States Supreme Court has ignored the general rule

in the area of abortion as well as other areas. Edwards v.

App. 49

Aguillard, 482 U.S. 578, 586 (1987). To determine if a

statute has an improper purpose, a court must look beyond

the statute’s unambiguous language to the legislative

history. Id. at 594-95 (noting that a finding of improper

purpose is determined by analyzing the statute on its face

as well as its legislative history). This is especially true

when analyzing the legislative purpose under the Casey

purpose prong. See generally Jane L. v. Bangerter, 102 F.3d

1112, 1116 (10th Cir. 1996) (“A forbidden purpose may be

gleaned both from the structure of the legislation and from

examination of the process that led to its enactment.”);

Richmond Med. Ctr. For Women v. Gilmore, 55 F. Supp. 2d

441, 486 (E.D.Va. 1999) (“under Casey, the legislative

intent behind the enactment is a pertinent inquiry”).

776 In fact, the United States Supreme Court has

even noted that a court does not need to accept a legisla-

ture’s express and unambiguously stated purpose if the

legislative history shows that the proffered purpose was

not sincere, but merely a sham. Edwards, 482 U.S. at 586

(finding statute unconstitutional after legislative history

revealed that legislature’s stated purpose in statute was

not sincere). See also Bangerter, 102 F.3d at 1116 (striking

down a Utah statute with a preamble that expressly

declared the statute’s purpose was protecting lives and the

right to life of unborn children and holding that limiting

availability of abortions after twenty weeks gestational

age to only three narrow circumstances was unconstitu-

tional).

477 I disagree, moreover, with the majority opinion’s

conclusion that the Act expresses an allegedly proper and

unambiguous purpose. The Act’s plain language eliminates

a cause of action that would otherwise exist but for the

link between the cause of action and abortion. The text of

App. 50

the Act‘ states that its purpose is to “encourage all persons

to respect the right to life of all persons ... including all

unborn persons.” Utah Code Ann. § 78-11-23 (1983). The

Act bans all actions based on negligence where birth

occurred instead of an abortion.

q78 Looking at the statute as a whole, it seeks to

“respect the life - of ‘unborn persons’” by immunizing

medical care providers from liability for negligent, reckless

or intentional acts only when those acts prevent abortions

from occurring. This language demonstrates quite clearly

that the purpose of the Act is to reduce or eliminate

abortion, even at the cost of standards of due care for

medical care providers. Although the language of the Act

does not explicitly state that its purpose is to reduce

abortions, the only available inference from connecting the -

first and second sections of the Act is that there is such an

unconstitutional motive. The purpose of the Act is to

‘ The language of the Act is as follows:

The legislature finds and declares that it is the public

policy of this state to encourage all persons to respect the

right to life of all other persons, regardless of age, develop-

ment, condition or dependency, including all handicapped

persons and all unborn persons.

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.

The failure or refusal of any person to prevent the live

birth of a person shall not be a defense in any action, and

shall not be considered in awarding damages or child sup-

port, or imposing a penalty, in any action.

Utah Code Ann. § 78-11-23-25.

App. 51

respect the lives of the unborn, but its provisions can have

no effect other than to reduce abortion or at least to

penalize its use. Therefore, the text of the Act taken as a

whole reflects an improper purpose.”

479 Besides the improper purpose inherent in the

structure and text of the statute itself, legislative history

conclusively demonstrates that its purpose was to place an

obstacle in the path of those choosing to abort. The due

process challenge to this Act will be no surprise to its

drafters as the legislature’s general counsel explicitly

recognized that this statute could be challenged on due

process grounds. Materials of Legislative General Counsel

on S.B. 149 (general counsel commenting in the Legisla-

tive Approval letter that he would “imagine a challenge to

this [S.B. 149] as being a violation of due process, and

perhaps equal protection”). As noted above, this court

must look to the legislative history to discover if the

expressed purpose was in fact the true purpose or merely a

sham. Legislative history indicates that the purpose

behind the Act was to eliminate wrongful life actions

which have four “frightening implications.” Materials of

Legislative General Counsel on S.B. 149. See also Wrong-

ful Life, supra J 67, at 224 n.747 and accompanying text;

Salt Lake Trib., June 20, 1999, at C7 (quoting Lynn

Wardle, the Act’s drafter, as stating “there are a lot of

people who believe abortion is an abhorrent moral crime,

* If the purpose of the Act was really to prevent punishing doctors

who did not want to perform abortions the Act would have codified the

right to refuse to perform an abortion without eliminating a person’s

right to judicial redress for injury caused by medical malpractice. See

42 U.S.C. § 300a-7 (Supp. 2002).

App. 52

so the purpose was to protect them from being forced by

pressures to be collaborators or accomplices in something

they find morally abhorrent.”).° Two of the four frightening

implications were that the wrongful life concept may

“eliminate virtually all handicapped children” and “in-

crease the incidence of sex-selection abortions.” Jd. (noting

that “if an obstetrician/gynecologist knows he may be sued

for [wrongful birth] he’ll find it in his best interests to

ensure that handicapped newborns (who somehow slip

through the screening programs) do not survive”). By

naming two extreme examples of what people can legally

do under the current abortion regime, the drafter indicates

his disapproval of these types of abortions and attributes

them to the wrongful life concept. Id. (noting also that the

wrongful life concept “treats babies as manufactured

products and prenatal screening as quality control”). By

noting the nexus between wrongful life actions and sex-

selection abortions or defective fetus abortions, the drafter

of the Act was clearly trying to reduce these types of

abortions by eliminating the remedy of wrongful life. Even

if it were true that pre-natal testing increases the number

of abortions, which it is not, this purpose is still improper

under the Casey purpose prong.

* Ironically, studies have shown that diagnosing fetal conditions

has actually reduced the number of pregnancy terminations, as many

women in the high risk category would have terminated a pregnancy

had they not known the health of their fetus. The Pro-Life Bonus of

Amniocentesis, 302 New Eng. J. Med. 925 (1980) (noting that the

increased availability of prenatal testing has led many women who

would not have considered having children to get pregnant).

’ This statement, of course, is tantamount to an assertion that

negligent physicians are likely to be murderers as well.

: 4

‘Ss

= e

App. 53

480 The Act’s legislative history also indicates that

the drafters intended the Act to interfere with parents

becoming “informed” regarding the health of their fetus.

According to a proponent instrumental in drafting the Act,

it was passed because of an emerging trend in genetic

testing. See Materials of Legislative General Counsel on

S.B. 149; Wrongful Life, supra 167, at 224 n.748 and

accompanying text. The proponents reasoned that if

wrongful birth actions were allowed, physicians would

routinely perform genetic testing in order to avoid mal-

practice suits. The proponents feared that routine genetic

testing encouraged abortions by “informing parents” of the

test results. Wrongful Life, supra | 67, at 224 n.748 and

accompanying text. Thus, to discourage testing and

eliminate the repercussions of not informing parents, the

legislature passed the Act anticipating that the unin-

formed parents would not choose to abort. Id. This purpose

— to eliminate informed choice — attempts to “place a

substantial obstacle in the path” of exercising a fundamen-

tal right to make an informed decision regarding the

reproductive process. Further, the Act not only violates

Casey by hindering the ability to obtain correct and

accurate information, but it actually attempts to hinder a

woman from exercising the informed choice to abort a

child. Therefore, the Act’s purpose violates the Casey test.

481 Since a law is unconstitutional if it has the

purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion, there is no reason to

examine whether the effect of this statute was improper.

However, since the majority opinion considered the ques-

tion of whether the statute had an improper effect a

“closer question,” I will discuss this prong as well. Maj. Op.

App. 54 ~

at J 21. I point out, however, that this discussion is neces-

sarily limited because of the procedural posture of the

case. The trial court dismissed this action and granted

judgment on the pleadings. Thus, no record has been

developed on the effect of the Act.

q82 The effect of the Act substantially obstructs and

burdens a woman’s exercise of an informed decision to

terminate a pregnancy. It allows information regarding

the health of a fetus to be negligently or intentionally

withheld without consequences. This information is s0

integral to informed choice that its Omission burdens the

right to make an informed decision to abort. See Julie F.

Kowitz, Not Your Garden Variety Tort Reform: Statutes

Barring Claims for Wrongful Life and Wrongful Birth are

Unconstitutional under the Purpose Prong of Planned

Parenthood v. Casey, 61 Brooklyn L. Rev. 235, 265 (1995).

G83 The Act shields physicians and other healthcare

providers from liability for failing to provide accurate,

medically correct information to their patients. It removes

a significant deterrent to the provision of incorrect infor-

mation, a deterrent function that is at the core of all

American tort law. See, e.g., Bowman v. Davis, 356 N.E. 2d

496, 499 (Ohio 1976) (“For this court to endorse a policy

that makes physicians liable for the foreseeable conse-

quences of all negligently performed operations except

those involving sterilization would constitute an imper-

missible infringement of a fundamental right.”). The Act,

through removal of this deterrent, sends a message con-

doning, if not encouraging, violations of the right to choose

abortion by permitting physicians to negligently withhold

information relevant to the choice. As Justice Howe

observed in Payne, “Courts accordingly have recognized

that physicians who perform testing and provide advice

——er hh

A App. 55

relevant to the constitutionally guaranteed procreative

choice ... have a corresponding obligation to adhere to

reasonable standards of professional performance.” Payne,

743 P.2d at 189 (emphasis added). The majority concludes

that the Act does not create a “safe harbor for health care

professionals who withhold information” because it is

likely that other claims and professional discipline may

result from intentionally withholding information. Maj.

Op. at 7] 21, 24 (noting breach of contract as an example

of a claim that may still exist). The problems associated

with the regulatory process and/or criminal remedies are

entirely unaddressed by this record, and I cannot agree

that the majority’s assertion is accurate. Furthermore, the

Act also creates a safe harbor for doctors who negligently ~

provide information regarding the health of the fetus that

may still infringe upon a woman’s right to make an in-

formed choice regarding a pregnancy, as was alleged here.

q84 In addition, the majority opinion goes on to say

that “just because one cannot sue her physician for wrong-

ful birth ... [does not necessarily mean that physicians

who disfavor abortion] are therefore inclined not to reveal

information that would likely influence a woman to abort

an unborn child.” Maj. Op. at 22 (citation omitted). In

essence, this is an argument that the Act will not induce

doctors to practice less carefully or to withhold informa-

tion from women seeking abortion. Of course, I agree that

though the Act may not induce doctors to intentionally

withhold information, it nonetheless insulates them from

liability for providing negligent information. This under-

mines a fundamental theory of tort law, that the imposi-

tion of sanctions on negligent behavior will deter such

behavior. Further, even the drafters of the Act recognized

that it would have some effect on doctors, since they

App. 56

purported to draft it in part to protect anti-abortion

doctors from having to perform prenatal tests that would

reveal information about the health of a fetus. Materials of

Legislative General Counsel on S.B. 149.

q85 In addition, the majority opinion notes that the

Act does nothing to hinder a woman “who has made the

decision” to abort a fetus; this observation misses the

point. Maj. Op. at 7 23. The point is that the Act condones

the placing of substantial obstacles in the path of one

seeking to make an informed decision about an abortion.

Therefore, in addition to the Act’s purpose to prevent

abortions, its effect is to obstruct the right to informed

reproductive choice. Accordingly, the Act creates an undue

burden on constitutionally guaranteed rights, violates due

process principles, and is unconstitutional. :

q86 Justice Howe concurs in Part I of Chief Justice

Durham’s dissenting opinion.

RUSSON, Justice, concurring in Chief Justice Durham’s

opinion:

I concur in Chief Justice Durham’s dissenting opinion.

In my view, the central consideration in this case is the

preservation of a patient's ability to make informed medi-

cal decisions and choices based on full, open, and frank

information from-and discussions with his or her physi-

cian. In that regard, the cause of action presented in this

case should be characterized as one for simple medical

malpractice negligence arising out of the hospital’s alleged

failure or delay in informing the patient of the results and

gud: BESET EY BALE GRE epi ee

AEDT EE LER LOE

este NPC EABLET GONE

0 GRE (SESS

ARIE RIES IONS 7 SEE

Oe EA TERRA IT PRE TRY

App. 57

interpretation of certain genetic tests in connection with a

pregnancy.

487 Justice Wilkins’ analysis concerning whether

Utah recognized a cause of action for wrongful birth prior

to the enactment of the Utah Wrongful Life Act (“Act”) is

too formalistic in its insistence that a particular label

(here “wrongful birth or life”) attached to a cause of action

must have been specifically and explicitly adopted by this

court in order for that cause of action to be said to have

been recognized in Utah. What is determinative in this

case, and in any case, in the application of the Berry test's

threshold question of whether a statute abrogates an

existing cause of action is the nature of the cause of action,

not the label placed on the cause of action.

488 Here, plaintiffs have brought a cause of action

that, while termed “wrongful birth,” simply pleads a claim

for medical malpractice or negligence. This case is no

different than a run-of-the-mill medical malpractice suit.

Prior to the enactment of the Act, a plaintiff who was

negligently given incomplete or inaccurate information by

a physician upon which information she relied in making

an informed choice about a particular medical procedure

or treatment could maintain an action against the physi-

cian for medical malpractice or negligence if the physi-

cian’s negligence was the proximate cause of an injury to

her. The same should be true in this case.

489 In the instant case, plaintiffs allegedly were

given delayed, incomplete, or incorrect information about

genetic test results related to a pregnancy. The allegedly

incorrect information or lack of information influenced the

couples’ medical decision regarding whether to continue

the pregnancy, proximately resulting in some harm to

App. 58

them. In any other medical context concerning any other

medical condition or procedure, such circumstances would

presumably support a cause of action for medical malprac-

tice negligence. The fact that this case involves the contro-

versial issue of abortion does not and should not affect the

characterization of the cause of action or the legal analysis

used to arrive at that characterization.

790 Because the cause of action stated in this case is

one for simple medical malpractice negligence, a cause of

action clearly recognized in Utah prior to the enactment of

the Act, and because the Act abrogates totally that cause

of action, the Act must pass muster under the Berry test to

be constitutional.

791 I agree with Chief Justice Durham’s Berry

analysis and her resulting conclusion that the Utah

Wrongful Life Act is an unconstitutional violation of article

I, section 11 of the Utah Constitution. Therefore, I would

hold that the Utah Wrongful Life Act does not bar Wood’s

complaint, the trial court’s grant of judgment on the

pleadings was error, and the case should be remanded for

further proceedings consistent with this opinion and Chief

Justice Durham’s dissent.

SSA NET ee NNR Le RR APA a) we ee

App. 59

DAVID G. WILLIAMS -— A3481

HEATHER S. WHITE — A7674

SNOW, CHRISTENSEN & MARTINEAU

Attorneys for Defendant

10 Exchange Place, Eleventh Floor

Post Office Box 45000

Salt Lake City, Utah 84145

Telephone: (801) 521-9000

IN THE THIRD JUDICIAL DISTRICT COURT

OF SALT LAKE COUNTY

STATE OF UTAH

MARIE WOOD and

TERRY BORMAN

individually, and ORDER AND JUDGMENT

additionally as the ,

natural parents of (Filed Sep. 5, 2000)

MARY LORRAINE WOOD

BORMAN, a minor,

Plaintiffs, Civil No. 990909044

ts Judge Homer Wilkinson

UNIVERSITY OF UTAH

MEDICAL CENTER,

Defendant.

On August 15, 2000, the Court-conducted oral argu-

ment on Defendant’s Motion for Judgment on the Plead-

ings as well as Plaintiffs Motion fer Partial Summary

Judgment. Plaintiffs Marie Wood and Terry Borman were

present and were represented by counsel, Thomas Shaffer

and David Pearce. Defendant was represented by counsel,

David Williams and Heather White. A representative of

= App. 60

Defendant was also present. Having read the briefs, heard

the counsel and being fully informed, the Court concludes

Utah Code Ann. § 78-11-24 is not unconstitutional under

either the Utah or United States Constitutions and bars

all claims asserted in Plaintiffs’ Complaint. It is therefore,

ORDERED, ADJUDGED AND DECREED as follows:

1. Defendant’s Motion for Judgment on the Plead-

ings is hereby GRANTED;

2. Plaintiffs’ Motion for Partial Summary Judgment

is hereby DENIED;

3. Judgement of no cause of action is hereby entered

in favor of Defendants and against Plaintiff.

DATED this 5 day of Sept. August, 2000.

BY THE COURT:

/s/ Homer F. Wilkinson

Homer F. Wilkinson

District Court Judge

Approved as to form: [SEAL]

FABIAN & CLENDENIN

/s/ Thomas Shaffer

Thomas Shaffer

David Pearce

Attorneys for Plaintiffs

App. 61

IN THE SUPREME COURT OF THE STATE OF UTAH

Marie Wood and Terry Borman

individually and additionally

as the natural parents of

Mary Lorraine Wood Borman,

a minor,

Plaintiffs and Appellants,

University of Utah Medical

Center,

Defendant and Appellee.

No. 20000827-SC

990909044

ORDER

(Filed Apr. 14, 2003)

This matter is before the court upon a Petition for

Rehearing filed on January 17, 2003, by Appellant.

IT IS HEREBY ORDERED that the Petition for

Rehearing is denied.

FOR THE COURT:

April 14, 2003 /s/ Christine M. Durham

Date Christine M. Durham

Chief Justice

App. 62

CERTIFICATE OF MAILING

I hereby certify that on April 15th, 2003, a true and

correct copy of the foregoing ORDER was deposited in the

United States mail to the party(ies) listed below:

DAVID G. WILLIAMS

RODNEY R. PARKER

SNOW, CHRISTENSEN & MARTINEAU

10 EXCHANGE PL STE 11TH FLOOR

PO BOX 45000

SALT LAKE CITY UT 84145

J. DAVID PEARCE

THOMAS A. SCHAFFER

FABIAN & CLENDENIN

215 S STATE ST 12TH FL

PO BOX 510210

SALT LAKE CITY UT 84151

and a true and correct copy of the foregoing ORDER was

hand delivered to a personal representative of the court

listed below:

THIRD DISTRICT, SALT LAKE

ATTN: SOPHIE ORVIN/KATHY SHUPE

450 S STATE ST

PO BOX 1860

SALT LAKE CITY UT 84114-1860

By /s/ Susan Willis

Deputy Clerk

Case No. 20000827-SC

THIRD DISTRICT, SALT LAKE, 990909044

App. 63

Supreme Court of Utah

450 South State Street

P.O. Box 140210

Salt Lake City, Utah 84114-0210

[Names And Additional Address Omitted In Printing]

February 19, 2003

DAVID G. WILLIAMS

RODNEY R. PARKER

SNOW, CHRISTENSEN & MARTINEAU

10 EXCHANGE PL STE 11TH FLOOR

PO BOX 45000

SALT LAKE CITY UT 84145

RE: Wood v. U of U Medical Center Supreme Court

No. 20000827-SC

Dear Counsel:

Pursuant to Rule 35(a) of the Utah Rules of Appellate

Procedure, appellees are invited to answer the appellant's

petition for rehearing.

The response may not exceed fifteen pages unless prior

approval should be granted by the court. The format for

the response shall comply with Rule 27, Utah Rules of

Appellate Procedure, and will be due fourteen days from

the receipt of this notice.

Sincerely,

/s/ Pat H. Bartholomew

Pat H. Bartholomew

Clerk of Court

cc: J. DAVID PEARCE

THOMAS A. SCHAFFER

App. 64

IN THE SUPREME COURT OF THE STATE OF UTAH

MARIE WOOD and TERRY _)

BORMAN individually, )

and additionally ) APPELANTS’

as the natural parents ) OPENING BRIEF

of MARY LORRAINE WOOD )

. Supreme Court

Plaintiffs and Appellants, ) Priority No. 15

v. ) Oral Argument

UNIVERSITY OF UTAH Requested

MEDICAL CENTER, ‘ (Filed Mar. 28, 2001)

Defendant and Appellee. )

— eee

OPENING BRIEF OF APPELLANTS

MARIE WOOD, TERRY BORMAN and

MARY LORRAINE WOOD BORMAN

lee

Appeal from a Judgment of the Third Judicial

District Court, Salt Lake County,

Honorable Homer F. Wilkinson, District Judge

OO lllllllllEESSSSSE™E=E™E™E_E_O_OO_nn=—={{———

DAVID G. WILLIAMS THOMAS A. SCHAFFER

RODNEY R. PARKER J. DAVID PEARCE

SNOW, CHRISTENSEN FABIAN & CLENDENIN,

& MARTINEAU P.O. Box 510210

Attorneys for Defendant Salt Lake City, Utah

10 Exchange Place, 84151-0210

Eleventh Floor Telephone: (801) 531-8900

Post Office Box 45000 Attorneys for Appellants

Salt Lake City, Utah 84145

Attorneys for Appellees

* * *

App. 65

B. THE ACT VIOLATES THE DUE PROCESS

CLAUSE OF THE UNITED STATE CON-

STITUTION BECAUSE ITS PURPOSE AND

EFFECT IS TO OBSTRUCT A WOMAN’S

CONSTITUTIONAL RIGHT TO TERMI-

NATE HER PREGNANCY.

In a long line of cases, the United States Supreme

Court has held that the right of a woman to terminate her

_ pregnancy is specially protected by the Due Process

clause. See Casey v. Planned Parenthood, 505 U.S. 833,

846 (1992) (plurality opinion); Stenberg v. Carhart, 530

U.S. 914 (2000) (adopting Casey purpose and effect test in

majority opinion). Any law that infringes on this right is

unconstitutional if it has the “purpose or effect of placing

a substantial obstacle in the path of a woman seeking an

abortion.” Case [sic], 505 U.S. at 877 (emphasis added). An

obstacle is substantial if it is “calculated [not] to inform

the woman’s free choice, [but to] hinder it.” Jd. In short, an

improper purpose or effect is sufficient to invalidate a law.

Because the purpose and the effect of the Act are to create

a substantial obstacle to obtain an abortion, the Act

violates the Due Process Clauses [sic] of the United States

Constitution.

First, the clear purpose of the Act is to prevent or

hinder abortions. The Act’s Sponsor and the legislative

history support this. See 1984 Utah L. Rev. at 224 n.747;

Section I(AX3), supra. The Supreme Court determined

that a statute “with this purpose is invalid.” Casey, 505

U.S. at 877.

Closely associated with this unconstitutional purpose

was the additional goal of eliminating parents from

becoming “informed” regarding the health of their fetus.

According to a proponent instrumental in drafting the Act,

App. 66

the Act was passed because a trend in performing genetic

testing was emerging. The proponents reasoned that if

wrongful birth was allowed, physicians would routinely

perform genetic testing in order to avoid malpractice suits.

The proponents feared that routine genetic testing en-

couraged abortions by “informing parents” of the test

results. Thus, to discourage testing and eliminate the need

to “inform parents,” the Legislature passed the Act in

anticipation that the uninformed parents would not choose

to abort. See 1984 Utah L. Rev. at 224 n.748 and accompa-

nying text. This purpose — to eliminate informed choice —

attempts to hinder, if not eliminate, a fundamental right.

The Casey Court noted that a law with such a purpose

would be invalid “because the means chosen by the State

to further the interest in potential life must be calcu-

lated to inform the woman’s free choice, not hinder

it.” Casey, 505 U.S. at 877. . (emphasis added). In fact, the

Casey Court repeatedly emphasized that informed choice

was central to a woman’s liberty interest, going so far as to

encourage legislation “aimed at ensuring a decision that is

mature and informed.” Jd.

This would not be the first time that the Utah Legisla-

ture had one of its statutes regarding abortion declared

unconstitutional because of an improper purpose. In Jane

L. v. Bangerter, the Tenth Circuit Court of Appeals applied

the Casey Purpose Prong to strike down Utah’s statute

regarding abortion. Jane L. V. Bangerter, 102 F.3d 1112,

1116-17 (10th Cir. 1996), cert. denied, 520 U.S. 1274

(1997). The Tenth Circuit examined the statute’s legisla-

tive history and found that the statute was “intended to

prevent the nontherapeutic abortion” of fetuses. Jd. Ac-

cordingly, the court held that the statute “was enacted

with the specific purpose of placing an insurmountable

PRET ARTA ET RT EMR SEN MEV Hh ARR REIN

REST ME SEMEL MDT EAR RPM PD

App. 67

obstacle in the path of a woman ... and it therefore

imposes an unconstitutional burden on her right to

choose under Casey.” Id. at 1117 (emphasis added).

Similarly, the purpose of the Act — to prevent abor-

tions and eliminate the informed decision making process

— attempts to improperly place a substantial obstacle in

the path of a woman seeking an abortion. As in Bangerter,

this unlawful purpose alone renders the Act unconstitu-

tional.

Yet, the Act also has the effect of substantially ob-

structing a woman from exercising an informed decision to

terminate her pregnancy. The information encouraged to

be withheld by the Act — the health of the fetus — is so

integral to informed choice that its omission substantially

obstructs a woman’s right to make an informed decision to

abort. See Julie F Kowitz, Not Your Garden Variety Tort

Reform: Statutes Barring Claims For Wrongful Life and

Wrongful Birth Are Unconstitutional Under the Purpose

Prong of Planned Parenthood v. Casey, 61 Brooklyn L. Rev.

235, 265 (1995).

The Act shields physicians from liability for failing to

provide accurate, medically relevant information. By so

doing, a substantial deterrent is removed. See, e.g., Bow-

man v. Davis, 356 N.E.2d 496, 499 (Ohio 1976) (“For this

court to endorse a policy that makes physicians liable for

the foreseeable consequences of all negligently performed

operations except those involving sterilization would

constitute an impermissible infringement of a fundamen-

tal right.”). The State of Utah, through removal of this

deterrent, substantially and sufficiently encourages

physicians to violate women’s right to an abortion by

App. 68

permitting the physicians to withhold accurate informa-

tion from that woman, thereby precluding her ability to

exercise her fundamental right. In fact, the Act precludes

any accountability to a physician who fails, whether

intentionally or not, to inform a woman regarding the

health of her fetus, a woman who, but for the physician’s

wrongdoing, would have exercised her fundamental

abortion rights. The State essentially encourages the

physician’s negligent or intentional behavior at the ex-

pense of the woman’s fundamental right, which carries the

imprimatur of state. See, e.g, Robak v. U.S., 658 F.2d 471,

476 (7th Cir. 1981) (finding that denial of wrongful birth

cause of action immunizes physicians who provide inade-

quate guidance to women “who would choose to exercise

their constitutional right to abort fetuses, which, if born,

would suffer from genetic . . . defects”.).

Because the defendants were encouraged under the

Act to withhold accurate information, Ms. Wood was

denied her liberty interest under the Fourteenth Amend-

ment to make an informed decision whether to terminate

her pregnancy. In short, the Act has been a direct and

substantial obstruction on her ability to make an informed

decision as to whether she should terminate her preg-

nancy. Accordingly, because the Act has this effect, it is

unconstitutional on this basis as well.

The Act’s purpose — to prevent abortion and informed

choice — places an obstacle in the path of a woman seeking

to abort a fetus. This alone invalidates the Act under the -

Due Process Clause of the Fourteenth Amendment. Like-

wise, the effect of the Act is to obstruct a woman’s right to

informed reproductive choice. Accordingly, the Act creates

OSES ELA TE MES IDLER FIPS RAG BO ES ag

PRANTL 2

App. 69

an undue burden, violates the Due Process Clause and is

unconstitutional.

SAREE Bins si aaa

SHES

EE Te MERC RSLS

App. 70

IN THE SUPREME COURT OF THE STATE OF UTAH

MARIE WOOD and TERRY )

BORMAN individually, )

and additionally ) APPELANTS’

as the natural parents ) REPLY BRIEF

of MARY LORRAINE WOOD ) Supreme Court

BORMAN, a miner, No. 20000827-SC

Plaintiffs and Appellants, ) Priority No. 15

v. ) Oral Argument

UNIVERSITY OF UTAH? Requested

MEDICAL CENTER, :

Defendant and Appellee. )

eee. eee

REPLY BRIEF OF APPELLANTS

MARIE WOOD, TERRY BORMAN and

MARY LORRAINE WOOD BORMAN

Se EEEeEeEeEeEeEeseees,,__ eee

Appeal from a Judgment of the Third J udicial

District Court, Salt Lake County,

Honorable Homer F. Wiikinson, District Judge

See ees. eee

DAVID G. WILLIAMS THOMAS A. SCHAFFER

RODNEY R. PARKER J. DAVID PEARCE

SNOW, CHRISTENSEN FABIAN & CLENDENIN,

& MARTINEAU P.O. Box 510210

Attorneys for Defendant Salt Lake City, Utah

10 Exchange Place, 84151-0210

Eleventh Floor Telephone: (801) 531-8900

Post Office Box 45000 Attorneys for Appellants

Salt Lake City, Utah 84145

Attorneys for Appellees

* * *

App. 71

V. THEACT’S STATED PURPOSE IS NOT SUFFI-

CIENT TO SURVIVE THE “PURPOSE” PRONG

OF CASEY.

The University does not dispute that a statute with

“the purpose ... of placing a substantial obstacle in the

path of a woman seeking an abortion” is invalid. Casey v.

Planned Parenthood, 505 U.S. 833, 846 (1992). Regardless

of a statute’s effect, if the purpose is to impede abortion,

the statute is unconstitutional. Attempting to avoid any

implication of abortion, the University asserts that be-

cause the Act states that its purpose is to encourage

respect of disabled life — an arguably proper purpose — no

further analysis is needed. While it is understandable that

the University does not want this Court to discover or

examine the Utah Legislature’s true, unconstitutional

purpose for the Act, the University ignores the appropriate

test for determining whether a statute has a constitution-

ally improper purpose.

It is generally true that legislative history is relevant

only where statutory language is ambiguous. However,

this rule does not apply where the purpose of a statute

determines its constitutionality. In fact, the United States

Supreme Court has ignored the general rule in three

specific areas, including: abortion, establishment clause

and voting districts. In each of these areas, the Supreme

Court has outlined a constitutional test requiring an

analysis of the statute’s purpose. See Edwards v. Aguil-

lard, 482 U.S. 578, 586 (1987).

It is well established that where the court must

determine if a statute has an improper purpose the court

should look beyond the statute’s unambiguous language to

the legislative history. See Edwards, 482 U.S. at 594-95,

(noting finding of improper purpose is determined by

App. 72

analyzing the statute on its face as well as its legislative

history). This is especially true when analyzing the legis-

lative purpose under the Casey Purpose Prong. See gener-

ally, Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.

1996) (“[a] forbidden purpose may be gleaned both from

the structure of the legislation and from examination of

the process that led to its enactment.”); Richmond Medical

Center For Women v. Gilmore, 55 F.Supp.2d 441, 486

(E.D.Va. 1999) (“under Casey, the legislative intent behind

the enactment is a pertinent inquiry.”).

In fact, the Supreme Court has even noted that a

court need not accept a legislature’s express and unambi-

guously stated purpose if the legislative history shows that

the proffered purpose was not sincere, but merely a sham.

Edwards, 482 U.S. at 586 (finding statute unconstitutional

after legislative history revealed that legislature’s stated

purpose in statute was not sincere). The Tenth Circuit

used a similar legislative analysis to strike down Utah’s

abortion statute. Bangerter, 102 F.3d at 1116. The statute

at issue in Bangerter included a preamble that expressly

declared the statute’s purpose as protecting the lives and

right to life of unborn children, a purpose similar to that of

the Act. See Utah Code Ann. § 76-7-301. This stated

purpose was both proper and unambiguous.

Nevertheless, the Tenth Circuit did not end its analy-

sis of the legislature’s purpose simply at the unambiguous

language of the preamble. Bangerter, 102 F.3d at 1116.

Rather, the court looked specifically to the process that led

to the statute’s enactment. Because the legislature’s true

intent — not that expressed for constitutional purposes in

the preamble — was to prevent the abortion of non-viable

fetuses, the Tenth Circuit declared the statute unconstitu-

tional. Jd. at 1117.

App. 73

Similarly, in this matter, as the University noted, the

Act expresses an allegedly proper and unambiguous

purpose. However, this Court’s analysis does not end

there. Instead, the Court must look to the legislative

history to discover if the expressed purpose was in fact the

true purpose or merely a sham. The evidence is over-

whelming that the purpose was to impede and place an

obstacle in the path of those choosing to abort.

The Act itself reveals that its only intent was to

prevent and or reduce abortion. The principal drafter of

the Act did not hide this purpose. He declared that the Act

was intended to prevent physicians from informing par-

‘ents as to the health of the fetus, thereby preventing the

parents from choosing to abort. Wrongful Life Actions,

1994 Utah L. Rev. 221, 224 n.748-52 and accompanying

text; William Shane Topham, Wrongful Birth and Wrong-

ful Life, 1984 Utah L. Rev. 833, 858 n. 153 (noting that

Professor Wardle indicated “purpose of the Act [was] to

codify, in Utah, the rights of individuals to refuse to

provide, perform or undergo nontherapeutic abortion or

contraceptive sterilization operations that contradict the

individual’s religious beliefs or moral convictions.”).

Legislators supported this rationale behind the Act. See

Second Reading S. 149, 45th Utah Leg., Gen. Sess. (Feb.

28, 1983) (statement of SenSwann) (“the bill is a good

bill, that it shouldn’t put pressure on a doctor for instance

to actually be encouraged to create an abortion in order to

avoid a handicap or a possible handicap and in effect deny

someone the opportunity to live.”).

These statements, coupled with those discussed in

Wood/Borman’s Opening Brief, reveal that the Act’s true

purpose and driving force was abortion, not discrimina-

tion. The University’s claim that these statements are

App. 74

unreliable should be ignored because they come from

politicians trying to “obtain political advantage” has been

rejected by the United States Supreme Court. See Ed-

wards, 482 U.S. at 594-95. This Court must look beyond

the Act’s stated purpose, to the actual purpose the legisla-

ture had in mind when passing the Act. This actual

purpose, gleaned from the text and the legislative history,

is clear. So clear, that at the district-eourt level, the Uni-

versity admitted the true purpose when it stated, “[tJhe

Act is not only rationally related but narrowly tailored to

achieve the State’s interest in protecting fetus’ from

abortion solely because of their physical condition.” (R. 80

(emphasis added)).

Despite its best efforts, the University cannot hide the

Act’s true intent. A proper onstitutional analysis of

purpose requires this Court .o look not only to the Act’s

language, but also to the legislative history surrounding

its passage. After performing this analysis, the Court can

only find, as the University recognized, that the Act was

intended to protect fetuses by eliminating abortion and

informed choice. This purpose is invalid and so too is the

Act.

App. 75

Thomas A. Schaffer, A7775

J. David Pearce, A8404

FABIAN & CLENDENIN,

A Professional Corporation

215 South State Street, Twelfth Floor

P.O. Box 510210

Salt Lake City, Utah 84151

Telephone: (801) 531-8900

Attorney for Plaintiffs

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

MARIE WOOD and

)

PLAINTIFFS’ MEMO-

TERRY BORMAN ) RANDUM IN OPPOSI-

individually, and ) TION TO DEFENDANTS

additionally as the ) “MOTION FOR JUDG-

natural parents of ) MENT ON THE PLEAD-

MARIE LORRAINE WOOD ) gg AND IN SUPPORT

BORMAN, a minor, ) OF PLAINTIFFS’

Plaintiffs, CROSS MOTION

: FOR PARTIAL

) SUMMARY JUDGMENT

See KNIER, ) Civil No. 990909044

> ) Judge Anne M. Stirba

Defendant. ) ORAL ARGUMENT

REQUESTED

)

(Filed Jan. 28, 2900)

App. 76

B. The Act violates the Due Process Clauses

of the United States and Utah Constitu-

tions because its purpose and effect is to

obstruct a woman’s constitutional right to

terminate her pregnancy.

In a long line of cases, the United States Supreme

Court has held that the right of a woman to terminate her

pregnancy is specially protected by the Due Process

clause. See Casey v. Planned Parenthood, 505 U.S. 833,

846 (1992) (plurality opinion). Any law that infringes on

this right is unconstitutional if it has the “purpose or

effect of placing a substantial obstacle in the path of a

woman seeking an abortion.” Jd. at 877 (emphasis added).

An obstacle is substantial if it is “calculated [not] to inform

the woman’s free choice, [but to] hinder it.” Jd. In short, an

improper purpose or effect is sufficient to invalidate a law.

Because the purpose and the effect of the Act are to create

a substantial obstacle to obtain an abortion, the Act

violates the Due Process Clauses of the United States and

Utah Constitutions.

First, the express purpose of the Act is to prevent

abortions. The Act’s Sponsor admitted as much on the

Senate floor. 1984 Utah L. Rev. at 224 n.747. The Supreme

Court determined that a statute “with this purpose is

invalid.” Casey, 505 U.S. at 877.

Closely associated with this unconstitutional purpose

was the additional goal of eliminating parents from

becoming “informed” regarding the health of their fetus.

According to a proponent instrumental in drafting the Act,

the Act was passed because a trend in performing genetic

testing was emerging. The proponents reasoned that if

wrongful birth was allowed, physicians would routinely

perform genetic testing in order to avoid malpractice suits.

App. 77

The proponents feared that routine genetic testing en-

couraged abortions by “informing parents” of the test

results. Thus, to discourage testing and eliminate the need

to “inform parents,” the Legislature passed the Act in

anticipation that the uninformed parents would not choose

to abort. See 1984 Utah L. Rev. at 224 n.748 and accompa-

nying text. This purpose — to eliminate informed choice —

attempts to hinder, if not eliminate, a fundamental right.

The Casey Court noted that a law with such a purpose

would be invalid “because the means chosen by the State

to further the interest in potential life must be calcu-

lated to inform the woman’s free choice, not hinder

it.” Id. (emphasis added). In fact, the Casey Plurality

repeatedly emphasized that informed choice was central to

a woman’s liberty interest, going so far as to encourage

legislation “aimed at ensuring a decision that is mature

and informed.” Id.

This would not be the first time that the Utah Legisla-

ture had one of its statutes regarding abortion declared

unconstitutional because of an improper purpose. In Jane

L. v. Bangerter, the Tenth Circuit Court of Appeals applied

the Casey Purpose Test to strike down Utah’s statute

regarding abortion. 102 F.3d 1112, 1116-17 (10th Cir.

1996). The Tenth Circuit examined the statute’s legislative

history and found that the statute was “intended to

prevent the nontherapeutic abortion” of fetuses. Id. Ac-

cordingly, the court held that the statute “was enacted

with the specific purpose of placing an insurmountable

obstacle in the path of a woman ... and it therefore

imposes an unconstitutional burden on her right to

choose under Casey.” Id. at 1117 (emphasis added).

App. 78

Similarly, the purpose of the Act — to prevent abor-

tions and eliminate the informed decision making process

— attempts to improperly place a substantial obstacle in

the path of a woman seeking an abortion. As in the

Bangerter case, this unlawful purpose alone renders the

Act unconstitutional.

Yet, the Act also has the effect of substantially ob-

structing a woman from exercising an informed decision to

terminate her pregnancy. The information encouraged to

be withheld by the Act — the health of the fetus — is so

integral to informed choice that its omission substantially

obstructs a woman’s right to make an informed decision to

abort. See Julie F. Kowitz, Not Your Garden Variety Tort

Reform: Statytes Barring Claims For Wrongful Life and

Wrongful Birth Are Unconstitutional Under the Purpose

Prong of Planned Parenthood v. Casey, 61 Brooklyn L. Rev.

235, 265 (1995).

The Act shields physicians from liability for failing to

provide accurate, medically relevant information. By so

doing, a substantial deterrent is removed. See, e.g., Bow-

man v. Davis, 356 N.E.2d 496, 499 (Ohio 1976) (“For this

court to endorse a policy that makes physicians liable for

the foreseeable consequences of all negligently performed

operations except those involving sterilization would

constitute an impermissible infringement of a fundamen-

tal right.”). The State of Utah, through removal of this

deterrent, substantially and _ sufficiently encourages

physicians to violate women’s right to an abortion by

permitting the physicians to withhold accurate informa-

tion from that woman, thereby precluding her ability to

exercise that fundamental right. The State essentially

encourages the physician’s negligent behavior at the

expense of the woman’s fundamental right. See, e.g, Robak

App. 79

v. U.S., 685 F.2d 471, 476 (7th Cir. 1981) (finding that

denial of wrongful birth cause of action immunizes physi-

cians who provide inadequate guidance to women “who

would choose to exercise their constitutional right to abort

fetuses, which, if born, would suffer from genetic ...

defects”.).

Because the defendants were encouraged under the

Act to withhold accurate information, Ms. Wood was

denied her liberty interest under the Fourteenth Amend-

ment to make an informed decision whether to terminate

her pregnancy. In short, the Act has been a direct and

substantial obstruction on her ability to make an informed

decision as to whether she should terminate her preg-

nancy. Accordingly, because the Act has this effect, it is

unconstitutional.

The Act’s expressed purpose — to prevent abortion and

informed choice — places an obstacle in the path of a

woman seeking an abortion of a fetus. This alone invali-

dates the Act under the Due Process Clause of the Four-

teenth Amendment. Likewise, the effect of the Act

obstructs a woman’s right to informed reproductive choice.

Accordingly, the Act creates an undue burden, violates the

Due Process Clause and is unconstitutional.

* * *

App. 80

Thomas A. Schaffer, A7775

J. David Pearce, A8404

FABIAN & CLENDENIN,

A Professional Corporation

215 South State Street, Twelfth Floor

P.O. Box 510210

Salt Lake City, Utah 84151

Telephone: (801) 531-8900

Attorney for Plaintiffs

IN THE THIRD JUDICIAL DISTRICT COURT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

MARIE WOOD and ) PLAINTIFFS’ ;

TERRY BORMAN ) ae di bo a

individually, and ) TO DEFENDANT'S

additionally as the ) OPPOSITION TO

natural parents of ) PLAINTIFFS’

BORMAN, a minor, ) SUMMARY JUDGMENT

— )

Plaintiffs, ) Civil No. 990909044

Vv. ) Judge Anne M. Stirba

UNIVERSITY OF UTAH?

MEDICAL CENTER, ‘

Defendant. )

- * °

App. 81

Ill. THE IMPROPER PURPOSE ANALYSIS UNDER

CASEY REQUIRES A COURT TO EXAMINE

NOT ONLY THE UNAMBIGUOUS LANGUAGE

OF A STATUTE, BUT ITS LEGISLATIVE HIS-

TORY AS WELL.

The University does not dispute that a statute with

“the purpose ... of placing a substantial obstacle in the

path of a woman seeking an abortion” is invalid. Casey v.

Planned Parenthood, 505 U.S. 833, 846 (1992). Nor does

the University dispute that the Act directly implicates

abortion. The University does, however, assert that be-

cause the Act states that its purpose is to encourage life —

an arguably proper purpose — no further analysis is

needed. While it is understandable that the University

does not want this Court to discover or examine the Utah

Legislature’s true, expressed and unconstitutional purpose

for the Act, the University ignores the appropriate test for

determining whether a statute has a constitutionally

improper purpose.

It is generally true that legislative history is relevant

only where statutory language is ambiguous. However,

this rule does not apply where the purpose of a statute

determines its constitutionality. In fact, the United States

Supreme Court has ignored the general rule in three

specific areas, abortion, establishment clause and voting

districts. In each of these areas, the Court has outlined a

constitutional test requiring an analysis of the statute’s

purpose. See Edwards, 482 U.S. at 586; Shaw v. Hunt, 517

U.S. 899 (1996).

It is well established that where the court must

determine if a statute has an improper purpose the court

should look beyond the statute’s unambiguous language.

See e.g., Edwards v. Aguillard, 482 U.S. 578, 594-95 (1987)

App. 82

(noting finding of improper purpose is determined by

analyzing the statute on its face as well as its legislative

history). This is especially true when analyzing the legis-

lative purpose under the Casey “undue burden” test. See

generally, Jane L. v. Bangerter, 102 F.2d 1112, 1116 (10th

Cir. 1996) (“[a] forbidden purpose may be gleaned both

from the structure of the legislation and from examination

of the process that led to its enactment.”); Okpalobi v.

Foster, 190 F.3d 337, 354 (5th Cir. 1999) (“(I]n conducting

its impermissible purposes inquiries, the [Supreme] Court

has looked to various types of evidence, including the

language of the challenged act, its legislative history, the

social and historical context of the legislation.... ”);

Richmond Medical Center For Women v. Gilmore, 55

F.\Supp.2d 441, 486 (E.D.Va. 1999) (“under Casey, the

legislative intent behind the enactment is a pertinent

inquiry.”).

In fact, the Supreme Court has even noted that a

court need not accept a legislature’s express and unambi-

guously stated purpose if the legislative history shows that

the proffered purpose was not sincere, but merely a sham.

Edwards, 482 U.S. at 586 (finding statute unconstitutional

after legislative history revealed that legislature’s stated

purpose in statute was not sincere).

The Tenth Circuit used a similar legislative analysis

to strike down Utah’s abortion statute. Bangerter, 102 F.3d

at 1116. The statute at issue in Bangerter included a

preamble that expressly declared the statute’s purpose as

protecting the lives and right to life of unborn children.

See Utah Code Ann. § 76-7-301. This stated purpose was

both proper and unambiguous.

App. 83

Nevertheless, the Tenth Circuit did not end its anal

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