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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 946

## Text

Supreme Geert, U.S.
FILE®

03 -82 ju 112008

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a

No.

Ju The
Supreme Court of the Anited States

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MARIE WOOD and TERRY BORMAN,
individually, and as the natural parents of
MARY LORRAINE WOOD BORMAN,

Petitioners,

Vv.

UNIVERSITY OF UTAH MEDICAL CENTER,

Respondent.

,
Vv

On Petition For Writ Of Certiorari
To The Utah Supreme Court

4

PETITION FOR A WRIT OF CERTIORARI

4

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

i

~

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.

~~.

li

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED.................cccseseersesseceeeees i
TABLE OF COREG Ee sevevccesciecesssssescessvscsnesvsoresacens ii
TABLE OF AUTHORITIES ........ nica hleleaca mate aaisakeceesi ili
COPTITIOWS TW esis ssesiicrecenssssrectsescsesconecsssnsseovennes 1
FUT en esa vive vinsncaisndchevidenenssuistectietsvenccveenresnne 1

STATUTORY AND CONSTITUTIONAL PROVI-
ID oicsivsiskectscciiavcta nn emanate 1
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
aaa ss os aaleyiescvonasterbekeebiainncabines 1
CONSTITUTION
Amendment XIV, United States Constitution.................... 1
FEDERAL STATUTES
I cia ia oc ercthbaacnsnsicunvsdinssdinvisartubeasundeaviersicinnes 1
I ac chcccckninsssnsnsanssinsvsssseiseenecnsanencovenen 1

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

2

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.

eo
vy

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

3

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

4

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’

5

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.

,’
vv

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

6

“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

7

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

8

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

9

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

10

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

11

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.

12

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

ee

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13

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 >» #
Ai

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

ee
,
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.

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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.

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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 w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1830%3A1. Public record. Not legal advice.