                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-24-2002

Santa Marie v. McGreevey
Precedential or Non-Precedential: Precedential

Docket No. 01-1068




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Recommended Citation
"Santa Marie v. McGreevey" (2002). 2002 Decisions. Paper 806.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/806


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PRECEDENTIAL

       Filed December 24, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 01-1068 & 01-1461

DONNA S. MARIE, (a fictitious name of a real individual),
individually, on her own behalf, and on behalf of all
women similarly situated; Donna Santa Marie, on behalf
of her own child and all others similarly situated;
TERESA H. JIMENEZ, on behalf of herself and on behalf
of her patients [both mothers carrying children and the
children themselves], and all other children similarly
situated; JANE JONES, (a fictitious name of a real
individual), individually, on her own behalf, and on behalf
of all women similarly situated; JANE JONES, on behalf
of her own child and all other individuals similarly
situated; MARY DOE, (a fictitious name of a real
individual), individually, on her own behalf, and on behalf
of all women similarly situated; MARY DOE, on behalf of
her own child and all other individuals similarly situated;
MYRANA GUERRA-DeLUNA, M.D., on behalf of herself,
and on behalf of her patients [both mothers carrying
children and the children themselves] and all women and
children similarly situated,
       Appellants

v.

*JAMES E. McGREEVEY, Governor of the State of New
Jersey in his official capacity; MEMBERS OF THE NEW
JERSEY BOARD OF MEDICAL EXAMINERS; JOSEPH
GLUCK; JUDITH I. GLEASON; VERONICA E. DESMOND;
GLENN A. FARRELL; DANIEL WEISS; ARTHUR W. PERRY,
M.D.; BERNARD ROBINS, M.D.; MICHAEL T. CHEN,
M.D.; KAREN C. CRISS, C.N.M.; ARGANEY L. LUCAS,
JR., M.D.; CLIFTON LACY, M.D.; BASSAM HADDAD,




M.D.; DONALD C. HUSTON, JR., D.O.; WILLIAM V.
HARRER, M.D.; GHIAS MOUSSA, M.D.; GREGORY J.
ROKOSZ, D.O.; JAMES C. RICKETTI, D.P.M.; MANMOHAN
PATEL, M.D.; KEVIN P. WALSH; KELLY REID, M.D.;
EDWIN TRAYNER, M.D.; DAVID WALLACE, M.D., in their
capacity as members of the New Jersey Board of Medical
Examiners, and their successors in office; JOSEPH P.
BRENNAN, JR., Surrogate Essex County; DIANE
GEROFSKY, Surrogate of Mercer County; KEVIN J.
HOAGLAND, Surrogate of Middlesex County; DAVID
SAMSON, Attorney General of the State of New Jersey, in
his official capacity and his successors in office

(*Amended per Court order dated 11/6/02)

On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 99-cv-02692
(Honorable Garrett E. Brown, Jr.)

Argued June 4, 2002

Before: SCIRICA, BARRY and WEIS, Circuit Judge s

(Filed: December 24, 2002)

       HAROLD J. CASSIDY, ESQUIRE
        (ARGUED)
       Cassidy Messina & Laffey
       961 Holmdel Road
       Holmdel, New Jersey 07733

       THOMAS F. SHEBELL, JR.,
        ESQUIRE (ARGUED)
       Shebell & Shebell
       1398 Highway 35 South
       Ocean City, New Jersey 07712

        Attorneys for Appellants

                                2


       PATRICK DeALMEIDA, ESQUIRE
        (ARGUED)
       Office of Attorney General of
        New Jersey
       Department of Law & Public Safety
       Richard J. Hughes Justice Complex
       25 Market Street, P.O. Box 112
       Trenton, New Jersey 08625

        Attorney for Appellees,
       James E. McGreevey, Governor of
       the State of New Jersey; Joseph
       Gluck; Judith I. Gleason; Veronica
       E. Desmond; Glenn A. Farrell;
       Daniel Weiss; Arthur W. Perry,
       M.D.; Bernard Robins, M.D.;
       Michael T. Chen, M.D.; Karen C.
       Criss, C.N.M.; Arganey L. Lucas,
       Jr., M.D.; Clifton Lacy, M.D.;
       Bassam Haddad, M.D.; Donald C.
       Huston, Jr., D.O.; William V.
       Harrer, M.D.; Ghias Moussa, M.D.;
       Gregory J. Rokosz, D.O.; James C.
       Ricketti, D.P.M.; Manmohan Patel,
       M.D.; Kevin P. Walsh; Kelly Reid,
       M.D.; Edwin Trayner, M.D.; David
       Wallace, M.D.; David Samson,
       Attorney General of the State of
       New Jersey

       ROBERT C. SCRIVO, ESQUIRE
       Office of County Counsel
       County of Essex
       465 Martin Luther King Boulevard
       Hall of Records, Room 530
       Newark, New Jersey 07102

        Attorney for Appellee,
       Joseph P. Brennan, Jr., Surrogate
       Essex County

                                3


       RICHARD C. WILLIAMS, JR.,
        ESQUIRE
       Office of County Counsel
       County of Mercer
       McDade Administration Building
       640 South Broad Street
       Trenton, New Jersey 08650

        Attorney for Appellee,
       Diane Gerofsky, Surrogate of
       Mercer County

       BENJAMIN D. LEIBOWITZ,
        ESQUIRE
       Office of County Counsel
       Middlesex County
       1 John F. Kennedy Square,
        Room 230
       New Brunswick, New Jersey 08903

        Attorney for Appellee,
       Kevin J. Hoagland, Surrogate of
       Middlesex County

       ROBERT J. MUISE, ESQUIRE
       Thomas More Center for Law
        & Justice
       3475 Plymouth Road, Suite 100
       Ann Arbor, Michigan 48105

        Attorney for Amicus Curiae-
       Appellant, The Thomas More
       Center for Law & Justice

OPINION OF THE COURT

PER CURIAM.

In this constitutional challenge, certain women who have
had abortions allegedly without giving informed consent
contend that denial of their right to recover damages under
New Jersey’s Wrongful Death Act violates the Equal
Protection and Due Process clauses of the Fourteenth
Amendment. We have previously rejected such a claim,

                                4


Alexander v. Whitman, 114 F.3d 1392 (3d Cir. 1997), and
accordingly will affirm the District Court’s dismissal under
Federal Rule of Civil Procedure 12(b)(6). Plaintiffs may have
legal recourse in the nature of a damages claim under New
Jersey law, an issue they have not raised here.

I.

The principal plaintiffs are women who have had
abortions in New Jersey allegedly without their informed
consent. They seek to sue their doctors for purported
wrongful abortions under the New Jersey Wrongful Death
Act, N.J. Stat. Ann. S 2A:31-1. They contend that in not
permitting recovery of damages for the wrongful death of a
fetus in the womb, the New Jersey law violates their equal
protection rights. They also contend that New Jersey law, in
failing to require what plaintiffs view as adequate consent,
and in "affirmatively protecting" doctors who perform
abortions, violates the equal protection and due process
rights of women who have had abortions.

Two obstetricians are also named plaintiffs. They claim
direct damages and seek third-party standing to represent
the interests of their patients. Their direct claims are
unclear, but appear to be primarily in the nature of lost
business due to their refusal to offer abortion-related
services, and due to the early termination of their patients’
pregnancies. Because the doctor’s claims are ultimately
derivative of the violations alleged by the mother plaintiffs,
we will direct our attention to the women’s claims. 1

Defendants are New Jersey state and county officials and
members of the New Jersey State Board of Medical
Examiners.

Each of the women plaintiffs contends she had an
abortion without fully understanding the nature of the
procedure. At least one plaintiff claims to have been
threatened and coerced into having an abortion. Because
this is an appeal of a dismissal under Rule 12(b)(6), we
_________________________________________________________________

1. Plaintiffs also seek class certification of individuals similarly situated
to both groups of named plaintiffs. The District Court dismissed
plaintiffs’ complaint without reaching this issue.

                                5


must accept plaintiffs’ allegations as true. Bd. of Trs. of
Teamsters Local 863 Pension Fund v. Foodtown, Inc. , 296
F.3d 164, 168 (3d Cir. 2002). These allegations would seem
to give rise to certain state-law causes of action. Women
who believe they submitted to abortions without informed
consent may be able to sue for damages under New Jersey
law. See Acuna v. Turkish, 808 A.2d 149 (N.J. Super. Ct.
App. Div. 2002). But plaintiffs here assert only federal
constitutional claims under the equal protection and due
process clauses, and under 42 U.S.C. SS 1983 & 1988.

II.
a.

Plaintiffs’ central argument is that the women have been
discriminated against in being denied the ability to recover
damages in a wrongful death action on behalf of their
aborted fetuses under New Jersey law.2 This challenge is
precluded by our opinion in Alexander v. Whitman , 114
F.3d 1392 (3d Cir. 1997).

The wrongful death action is a creation of statute. 3 It
permits certain persons--generally family members--to
bring a tort action against a person who tortiously caused
the death of another. Wrongful death is "in essence . . . a
derivative action based on the harm done to the decedent,
_________________________________________________________________

2. In the district court, plaintiffs raised a parallel argument under the
New Jersey survival law, but in this court have focused their arguments
on wrongful death. The issues at stake appear to be the same in both
instances.

3. The New Jersey Wrongful Death Act provides:

       When the death of a person is caused by a wrongful act, neglect or
       default, such as would, if death had not ensued, have entitled the
       person injured to maintain an action for damages resulting from the
       injury, the person who would have been liable in damages for the
       injury if death had not ensued shall be liable in an action for
       damages, notwithstanding the death of the person injured and
       although the death was caused under circumstances amounting in
       law to a crime.

N.J. Stat. Ann. S 2A:31-1.

                                6


and is thus differentiated from personal injury actions
brought by the decedent prior to death, or by survivors
resulting from injuries they directly suffered due to the
wrongful death." Giardina v. Bennet, 545 A.2d 139, 145
(N.J. 1988).

The derivative nature of the cause of action requires an
assessment of the rights of the "person injured." N.J. Stat.
Ann. S 2A:31-1. The New Jersey Supreme Court has ruled
that fetuses are not persons for purposes of this statute, so
they cannot be "person[s] injured." Giardina, 545 A.2d at
143. It necessarily follows that their parents cannot recover
under the statute on their behalf. "[T]he Wrongful Death
Act does not permit recovery attributable to the wrongful
death of an infant before birth." Giardina , 545 A.2d at 139;
Acuna, 808 A.2d at 151 (no wrongful death action for
abortion without consent). A parent may, however, recover
for the wrongful death of a child who is injured prenatally,
and dies from those injuries after birth. Giardina, 545 A.2d
at 146 n.2 (following Smith v. Brennan, 157 A.2d 497 (N.J.
1960)).
Under Giardina, fetuses are not "persons" for purposes of
the Wrongful Death Act. Therefore, plaintiffs are unable to
recover under the Wrongful Death Act on behalf of their
fetuses, even if they were wrongfully aborted. 545 A.2d at
143. But parents may still have a cause of action. In
Giardina, the court expressly recognized "a valid cause of
action for the emotional injuries suffered by parents in this
kind of a case." Id. at 143; see also Acuna, 808 A.2d at
155-56 (recognizing Giardina action for wrongful abortions).
The parents’ own loss, therefore, may be compensable, but
they are precluded under New Jersey law from bringing a
derivative wrongful death action on behalf of their fetuses.

Plaintiffs contend the distinction between fetuses injured
in the womb who die before birth (including aborted
fetuses), and fetuses injured in the womb who die after live
birth, violates the Equal Protection Clause of the
Fourteenth Amendment. They do not argue the statute
violated the equal protection rights of the fetuses, because
"the word ‘person,’ as used in the Fourteenth Amendment,
does not include the unborn." Roe v. Wade, 410 U.S. 113,
158 (1973). The Supreme Court has held the unborn do not

                                7


have rights under the Equal Protection Clause. Id. Instead,
plaintiffs contend the statute impermissibly treats mothers
of live-born babies and mothers of aborted fetuses as
separate classes. In other words, mothers of fetuses that do
not survive birth, including aborted fetuses, are unjustly
discriminated against.

This general argument was made in--and rejected by--
this court previously. In Alexander, plaintiffs challenged the
New Jersey Wrongful Death Act on essentially the same
grounds. That case involved not abortion, but alleged
negligence that led to a stillbirth. Plaintiffs’ central
contention, however, is the same and they repeat many of
the same arguments rejected in Alexander. We held in
Alexander that New Jersey’s Wrongful Death Act did not, as
a general matter, violate the Equal Protection Clause by
classifying women according to whether their children
survived birth. 114 F.3d at 1408. That holding is
dispositive here.

In Alexander and again here, plaintiffs assert that the
challenged classification must be assessed under a strict
scrutiny standard,4 because it involves fundamental
_________________________________________________________________

4. The Supreme Court has stated that "classifications affecting
fundamental rights are given the most exacting scrutiny." Clark v. Jeter,
486 U.S. 456, 461 (1988) (citation omitted); see also Harper v. Va. State
Bd. of Elections, 383 U.S. 663, 672 (1966); Carrington v. Rash, 380 U.S.
89 (1965); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964); Baker v. Carr,
369 U.S. 186 (1962). But it is unclear what constitutes a "fundamental
right," and what relationship a classification must stand in relation to
that right to "affect" it for these purposes.
Plaintiffs contend the proposition that the parent/child relationship is
protected by strict scrutiny under the Equal Protection Clause is
established by several Supreme Court cases. In Levy v. Louisiana, 391
U.S. 68 (1968), and Glona v. American Guarantee & Liability Insurance
Co., 391 U.S. 73 (1968), the Court struck down state wrongful death
statutes that conditioned the right of recovery, in part, on the legitimacy
of the children involved, either as decedents or as survivors. The Court
later struck down a workers’ compensation statute that gave lesser
rights of recovery to illegitimate children. Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972). Plaintiffs contend these cases applied strict
scrutiny, and did so because of the importance of the relationship
between parent and child.

                                8


parental rights, and cannot be justified by any compelling
state interest. But we found that, whether or not strict
scrutiny applied to such cases, it did not apply there,
because "[i]t is not the relationship that is affected . . . , it
is the ability to recover for the loss of that relationship."
114 F.3d at 1404.

Plaintiffs contend Alexander is distinguishable because it
involved a negligence claim rather than an intentional
wrongful act on the part of the doctor who performed the
abortion. But the New Jersey Wrongful Death Act does not
affect the parent/child relationship in this case any more
than it did in Alexander. As the Supreme Court has stated,
"It cannot seriously be argued that a statutory entitlement
to sue for the wrongful death of another is itself a
‘fundamental’ or constitutional right." Parham v. Hughes,
441 U.S. 347, 358 n.1 (1979). In Alexander, we considered
and rejected plaintiffs’ argument that the need to deter
wrongful deaths established that parent/child relationships
were sufficiently affected. 114 F.3d at 1404. As in
Alexander, the District Court was correct to apply rational
relationship review to the statute. And following Alexander,
the District Court was correct in finding the classification
bears a rational relationship to a legitimate state interest.5
_________________________________________________________________

But the Court did not apply strict scrutiny in any of these cases.
Instead, the Court applied intermediate scrutiny, and did so because of
the issue of illegitimacy, not because of effect on the parent/child
relationship itself. See Clark, 486 U.S. at 461 ("Between these extremes
of rational basis review and strict scrutiny lies a level of intermediate
scrutiny, which generally has been applied to discriminatory
classifications based on sex or illegitimacy."); Alexander, 114 F.3d at
1405 ("[T]he interest at issue in each of those cases was the
classification of the child’s legitimacy, and the inability of both parent
and child to reverse the burdens imposed by illegitimacy.") (internal
quotation omitted); Brian B. v. Pa. Dept. of Ed. , 51 F. Supp. 2d 611, 621
(E.D. Pa. 1999) (citing Weber for the proposition that illegitimacy
classifications are subject to intermediate scrutiny). The cases cited by
plaintiffs do not support their argument that strict scrutiny should
apply.

5. In Alexander, we stated, "One cannot seriously argue that New Jersey
has no interest in defining who is entitled to recover for injuries and in
                                9


The present case, in other words, is governed by our
holding in Alexander.6See also Acuna, 808 A.2d at 153
(Alexander applied in abortion case).

b.

Plaintiffs also contend their rights were violated by New
Jersey law’s "affirmative protection" of doctors performing
wrongful abortions. They argue these protections violate
their equal protection and due process rights. Because this
claim, on its face, is more easily understood as a due
process claim, we will analyze it as such.

As far as we can tell, plaintiffs’ argument is that doctors
in New Jersey regularly perform abortions without the
informed consent of their patients. Under plaintiffs’ view,
state law protects these doctors by endorsing a scheme of
inadequate consent. Thus, the state acts (in concert with
the doctors) to violate women’s right to autonomously
control their reproduction. This failure to protect women,
by protecting wrongful actions by doctors, allegedly
amounts to a violation of women’s due process rights.7
_________________________________________________________________

setting limits on tort recovery for wrongful death." 114 F.3d at 1406. The
limits set by New Jersey were justified by problems of proof and the
advantages of a bright-line rule. Id. These are legitimate interests
rationally related to the challenged classification. Furthermore, wrongful
death actions are derivative ones focused on the wrong done to the
victim.
6. Plaintiffs also contend their equal protection rights were violated
because their protections compare unfavorably with parents who have
relinquished their parental rights in adoption, under a state scheme that
ensures the relinquishment is made knowingly and voluntarily. In both
situations, plaintiffs contend the parents’ decisions amount to a waiver
of their fundamental constitutional right to relationships with their
children. New Jersey’s failure to provide a similar scheme, they
maintain, is unconstitutional. But adoption and abortion are different in
several respects, many of which would provide a rational basis for
differing consent requirements.

7. In order to remedy these alleged violations, plaintiffs request: a general
declaration that New Jersey’s criminal and civil laws protecting abortion
rights violate due process and equal protection; a declaration that every
human being, including fetuses, "enjoys protection under the Equal
Protection Clause of the Fourteenth Amendment"; and entry of an
injunction requiring New Jersey regulations to "require the express
recognition of the child as a human being," among others.

                                10


We do not understand plaintiffs to contend New Jersey
affirmatively protects doctors who perform abortions
without consent, where consent is understood in its
ordinary sense. Instead, they contend consent requirements
should include informing the pregnant woman that"her
child is already in existence," that her fetus is a "complete,
separate . . . unique" human being; and that her child, if
eight weeks or older, may feel pain. The woman should also
be required to view a sonogram and listen to the child’s
heartbeat, according to plaintiffs.

What is required for consent under New Jersey law is not
fully settled. See Acuna, 808 A.2d at 157 (declining to
"address these perplexing issues" prior to development of
factual record). In any event, we see no basis for a due
process violation. Whatever the particulars of New Jersey
law, the Constitution does not require that New Jersey
mandate the heightened consent requirements urged by
plaintiffs. If plaintiffs believe the informed consent laws in
New Jersey are inadequate, they can petition their elected
representatives in the New Jersey legislature for redress, or
continue to seek relief in the courts under New Jersey law.8

For the foregoing reasons, we will affirm the judgment of
the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

8. In Acuna, the New Jersey Appellate Division said, "both parties have
agreed that it is premature to define what duty of care is owed by a
physician in this context. The parties also rightly agree that we should
not, at this posture of the case, address the fact-sensitive issues
concerning what dangers incident to, or consequences resulting from,
such a procedure would be ‘material’ to the ‘prudent patient.’ Both
parties concur that a resolution of these issues should await a complete
factual record." 808 A.2d at 157.

                                11
