The protection of prenatal life: Tort claims of wrongful birth or wrongful life and equal protection under Pennsylvania's constitution

Temple Law Review

Volumn 72, Issue 3, 1999, Pages 715-741

  Pellegrino, Mary Ellen ^a,b  

^a DUQUESNE UNIVERSITY   (United States)

^b SAINT JOSEPH S UNIVERSITY   (United States)

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EID: 9944256340     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (232)

1. BLACK'S LAW DICTIONARY 536 (6th ed. 1990).
2. GEORGE ORWELL, ANIMAL FARM 143-150 (50th anniversary ed. 1995) (1945).
3. See generally WILLIAM COHEN & JONATHAN D. VARAT, CONSTITUTIONAL LAW CASES AND MATERIALS 679-80 (David L. Shapiro et al. eds., 9th ed. 1993) (discussing original understanding of Equal Protection Clause).
4. See generally, e.g., John T. Noonan, Jr., An Almost Absolute Value in History, in THE MORALITY OF ABORTION 1-59 (John T. Noonan, Jr. et al. eds., 1970) (tracing history of debate about ensoulment in Catholic Church).
5. This Article defines the term "prenatal human being" as a human being from fertilization until birth. This definition is similar to the definition of the term "unborn child" used in Pennsylvania's Crime Against the Unborn Child Act, 18 PA. CONS. STAT. § 2602 (1998), and in Pennsylvania's Abortion Control Act, 18 PA. CONS. STAT. § 3203 (1998). See § 3203 (defining "unborn child" as "an individual organism of the species homo sapiens from fertilization until live birth"). This Article's discussion of constitutional rights includes a comparison of the legal rights of a human during its pre-birth stage of growth and development with the legal rights of a human during its post-birth stage of growth and development. State and federal constitutions, statutes, and case law include a wide variety of terms when referring to human beings at any stage of physical development. In the interest of consistent terminology, this Article often uses the term "prenatal human being" or "human" in paraphrasing the language of such sources of law. See the actual constitutions, statutes, or cases cited in the footnotes for the particular phraseology used within a specific source of authority.
6. See, e.g., 18 PA. CONS. STAT. § 3202 (1998) (outlining legislative intent of Pennsylvania General Assembly in Abortion Control Act to protect life and health of both mother and child subject to abortion).
7. 410 U.S. 113 (1973).
8. See Roe, 410 U.S. at 154 (finding constitutional right to privacy encompasses abortion decision).
9. See id. at 163 (determining states may not interfere with mother's decision to terminate her pregnancy prior to "compelling point" at end of first trimester).
10. See id. at 138-41 (describing various state laws criminalizing abortion unless necessary to save life of mother). In Roe v. Wade, Justice Blackmun surveyed the history of abortion, id. at 129-47, and the state purposes and interests in criminalizing abortion, id. at 147-52. He noted that "[b]y the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother." Id. at 139. Justice Blackmun also suggested that the medical profession in the late nineteenth century played a role in the enactment of more stringent abortion control legislation. Id. at 141. Justice Blackmun described American Medical Association ("AMA") resolutions "recommending, among other things, that it 'be unlawful and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least one respectable consulting physician, and then always with a view to the safety of the child - if that be possible'. . . ." Id. at 142. Justice Blackmun also referenced an AMA resolution from 1967 regarding state regulation of therapeutic abortions. Id. at 142-43. He then concluded his discussion of the AMA's role in enacting abortion legislation by noting that the AMA itself recognized a "polarization of the medical profession" on the abortion issue by 1970. Id. at 143.
11. See id. at 164 (protecting mother's right to make abortion decision during first trimester "free of interference by the State"). After reviewing federal privacy cases, Justice Blackmun concluded "that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." Id. at 154. The Court agreed with the approach of many state and lower federal courts that determined that the privacy right is not absolute and "that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant." Id. at 155. With respect to state regulation, however, Justice Blackmun explained that "[w]here certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Id. at 155 (citations omitted).
12. Martin Gardner provides a brief description of the parens patriae doctrine ("the state as a parent") in his discussion of the protectionist and personhood theories of children's rights. See MARTIN R. GARDNER, UNDERSTANDING JUVENILE LAW §§ 2.02, 2.03, at 12-13 (1997) (noting extension of parens patriae doctrine to various mechanisms designed to protect child in need). The equity decisions found in state case law provide examples of the application of the parens patriae doctrine to the prenatal human or unborn child. See William J. Maledon, Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 NOTRE DAME L. REV. 349, 361-62 (1971) (describing cases in which courts upheld state's parens patriae jurisdiction to protect unborn child in need of blood transfusions).
13. Martin Gardner provides a brief description of the parens patriae doctrine ("the state as a parent") in his discussion of the protectionist and personhood theories of children's rights. See MARTIN R. GARDNER, UNDERSTANDING JUVENILE LAW §§ 2.02, 2.03, at 12-13 (1997) (noting extension of parens patriae doctrine to various mechanisms designed to protect child in need). The equity decisions found in state case law provide examples of the application of the parens patriae doctrine to the prenatal human or unborn child. See William J. Maledon, Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 NOTRE DAME L. REV. 349, 361-62 (1971) (describing cases in which courts upheld state's parens patriae jurisdiction to protect unborn child in need of blood transfusions).
14. Roe, 410 U.S. at 155.
15. Id. at 154-55.
16. See James Bopp, Jr. et al., The "Rights" and "Wrongs" of Wrongful Birth and Wrongful Life: A Jurisprudential Analysis of Birth Related Torts, 27 DUQ. L. REV. 461, 485-86 (1989) (describing incentive to recommend abortion to avoid liability and litigation where physician failed to detect fetal defects). See also Hatter v. Landsberg, 563 A.2d 146, 149-50 (Pa. Super. Ct. 1989) (discussing distinction between "wrongful birth" and "wrongful conception").
17. See Bopp et al., supra note 15, at 466-68 (noting state courts began to recognize wrongful birth and wrongful life causes of action after Roe).
18. id. at 461.
19. Id.
20. Id. at 462.
21. Definition of the precise moment of death or the beginning of life is beyond the scope of this Article. For purposes of this Article, the term "prenatal life" generally coincides with the existence of the prenatal human being, from the time of fertilization until birth. See supra note 5 and accompanying text for a further discussion of the term "prenatal human being." This Article does not presume that prenatal death always coincides with the moment of pregnancy termination. The prenatal human being may cease to grow and develop before, during, or after the abortion process. When cessation of life occurs after birth, death of a post-natal human being often is determined by a lack of brain waves and marked by total physical decay, rather than growth and development. This Article regards an induced abortion as the cause of prenatal death when the prenatal human being would have continued to grow, but for the act of inducing the abortion. This Article uses the term "abortion" in the broadest sense to mean the premature termination of a pregnancy. A natural abortion is also known as a miscarriage, a spontaneous abortion, or a premature delivery. An induced abortion is a miscarriage or premature delivery caused by someone or something outside the natural processes of pregnancy. Abortion statutes, administrative rules, and case law generally relate to induced abortions because they regulate the circumstances under which someone may or may not legally induce an abortion.
22. For example, under Pennsylvania case law, the unborn child has the right to inherit property. See, e.g., Swift v. Duffield, 5 Serg. & Rawle 38, 40 (Pa. 1819) (permitting child unborn at time of testator's death to take under devise to "the children" of testator's son). In the criminal law context, nineteenth-century Pennsylvania case law indicated that an unborn child was entitled to protection even if it had not reached the point of "quickening." See Mills v. Commonwealth, 13 Pa. 630, 632 (1850) (holding indictment charging attempt to procure abortion need not allege that mother had "quickened," because crime is perpetrated if abortion is procured any time after gestation begins).
23. See 18 PA. CONS. STAT. § 3202 (1998) (outlining legislative intent to protect life and health of both woman and child subject to abortion).
24. 42 PA. CONS. STAT. § 8305 (1998). Entitled "Actions for wrongful birth and wrongful life," the statute provides: (a) Wrongful birth. - There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners. (b) Wrongful life. - There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted. (c) Conception. - A person shall be deemed to be conceived at the moment of fertilization. 42 PA. CONS. STAT. § 8305 (1998).
25. See 1 PA. HOUSE LEG. J. 305-06 (1988) (explaining one goal of legislation was to counter perception that handicapped child is of less value than normal child and therefore grounds for suit against doctor).
26. 623 A.2d 816 (Pa. Super. Ct. 1993).
27. Dansby, 623 A.2d at 818.
28. Id.
29. Id. at 821.
30. Id. (citing Hatter v. Landsberg, 563 A.2d 146, 149-50 (Pa. Super. Ct. 1989)).
31. Id. at 821. The Dansby court analyzed state equal rights protections under both article I, section 1, of the Pennsylvania Constitution, defining the inherent rights of mankind, and the Special Laws provision of article III. Id. at 820.
32. See BARTON L. POST ET AL., THE LAW OF MEDICAL PRACTICE IN PENNSYLVANIA AND NEW JERSEY § 4:20, at 359-61 (1984) (discussing patients' rights to informed consent).
33. See, e.g., Roe v. Wade, 410 U.S. 113, 154 (1973) (finding state has interest in regulating abortion to protect health and potential life and to uphold medical standards).
34. See POST ET AL., supra note 31, § 4:5, at 339 (discussing formation of physician-patient relationship).
35. See GARDNER, supra note 12, § 2.02, at 11 (describing protectionist theory of juvenile law).
36. See generally Wisconsin v. Yoder, 406 U.S. 205 (1972) (finding parents have qualified right to guide religious future and education of their children). Pennsylvania has a history of enforcing state and parental rights and responsibilities for the care of children. See, e.g., Commonwealth v. Breth, 44 Pa. C. 56, 62-66 (Clearfield County Ct. 1915) (describing history reflected in case law and statutes).
37. See Sinclair v. Block, 633 A.2d 1137, 1139-40 (Pa. 1993) (describing pregnant woman's right to informed consent to surgical or operative procedure); Gray v. Grunnagle, 223 A.2d 663, 667-71 (Pa. 1966) (retracing historical development of doctrine of informed consent). See generally JUDITH AREEN ET AL., LAW, SCIENCE AND MEDICINE 235-37 (2d ed. 1996) (describing issues of informed consent).
38. See POST ET AL., supra note 31, § 6:27, at 667-68 (discussing physician liability for failure to obtain informed consent).
39. See id. § 6:1, at 588-89 (describing state health department regulation).
40. See id. § 4:31, at 399-406 (describing products liability theories enabling recovery against manufacturers and sellers).
41. See, e.g., Mills v. Commonwealth, 13 Pa. 630, 632 (1850) ("It is a flagrant crime, at common law, to attempt to procure the miscarriage or abortion of the woman; because it interferes with and violates the mysteries of nature, in that process by which the human race is propagated and continued.").
42. Id.
43. See Commonwealth v. Sierakowski, 35 A.2d 790, 793 (Pa. Super. Ct. 1944) (citing "well settled" rule in Pennsylvania that pregnant woman is not accomplice in crime).
44. See id. at 792 (citing Act of 1939, June 24, P.L. 872, §§ 525, 718, 719, 18 P.S. §§ 4525, 4718, 4719 (repealed 1974)).
45. Act of 1860, March 31, P.L. 382, 18 P.S. §§ 2071, 2072, repealed by Act of 1939, June 24, P.L. 872, §§ 718, 719, 18 P.S. §§ 4719, 4718 (repealed 1974).
46. See Sierakowski, 35 A.2d at 792 (describing similarity of statutes).
47. See, e.g., McGarvey v. Magee-Womens Hosp., 340 F. Supp. 751, 753 (W.D. Pa. 1972) (refusing to enjoin hospital from performing abortions because not intent of 14th Amendment to protect fetal life).
48. See Roe v. Wade, 410 U.S. 113, 148-49 (1973) (describing procedure's hazards and advances in medical techniques).
49. See Kenneth R. Niswander, M.D., Medical Abortion Practices in the United States, in ABORTION AND THE LAW 41-45 (David T. Smith ed., 1967) (discussing indications for therapeutic abortions).
50. See Roe, 410 U.S. at 138-52, 174-78 (1973) (explaining state regulation of abortion as deriving from concern for women's health and medical standards and a state interest in protecting prenatal life).
51. Section 12 of the Medical Malpractice Act of 1911, June 3, P.L. 639, 63 P.S. § 401, repealed by Medical Malpractice Act of 1974, July 20, P.L. 551, 63 P.S. § 421.1.
52. In Roe v. Wade, Justice Blackmun uses the term "therapeutic abortion" to refer to medically-indicated induced abortions. See, e.g., Roe, 410 U.S. at 148 (describing state law excusing abortion where necessary to preserve life of mother). Justice Blackmun noted that an AMA committee report expanded the exceptions to that organization's general opposition to abortion to encompass not only life-saving abortions but also abortions induced for psychological reasons, such as rape of the mother or "incapacitating physical deformity or mental deficiency" of the child. Roe, 410 U.S. at 142. In at least one Pennsylvania case of the 1970s, the right to privacy was not the focus of the Fourteenth Amendment due process issue. In Berman v. Duggan, 119 Pittsburgh L.J. 226 (Allegheny County 1971), the Pennsylvania abortion statute's vagueness was the focus of the Fourteenth Amendment issue. Id. at 238. The Berman court found that the statute did not define the term "unlawful," thereby violating the due process rights of physicians who were performing "therapeutic" abortions with no clear legal guidelines as to which medical purposes and procedures were "lawful." Id. at 237-39. Near the center of the abortion controversy was the definition of the term "therapeutic." Webster's New Collegiate Dictionary defines the term with the words "of or relating to the treatment of disease or disorders by remedial agents or methods: MEDICINAL." WEBSTER'S NEW COLLEGIATE DICTIONARY 1210 (1973). Is pregnancy a disease or a disorder if neither the mother nor the prenatal child are suffering from physical ailment? If the prenatal human being is afflicted by some physical ailment but the pregnant mother is not, is prenatal death by induced abortion the proper cure?
53. See, e.g., POST ET AL, supra note 31, § 6:1, at 588-89 (discussing Pennsylvania medical regulations).
54. The Pennsylvania abortion statutes in effect when Roe v. Wade was decided provided: Abortion. - Whoever, with the intent to procure the miscarriage of any woman, unlawfully administers to her any poison, drug or substance, or unlawfully uses any instrument, or other means, with the like intent, is guilty of felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding three thousand dollars ($3000), or undergo imprisonment by separate or solitary confinement at labor not exceeding five (5) years, or both. Act of 1939, June 24, P.L. 872, 18 P.S. § 4718 (repealed 1974). Abortion Causing Death. - Whoever unlawfully administers to any woman, pregnant or quick with child, or supposed and believed to be pregnant or quick with child, any drug, poison or other substance, or unlawfully uses any instrument or other means, with the intent to procure the miscarriage of any such woman, resulting in death of such woman, or any child with which she may be quick, is guilty of a felony, and upon conviction thereof, shall be sentenced to pay a fine not exceeding six thousand dollars ($6000), or undergo imprisonment by separate or solitary confinement at labor not exceeding ten (10) years, or both. Act of 1939, June 24, P.L. 872, 18 P.S. § 4719 (repealed 1974).
55. See Roe v. Wade, 410 U.S. 113, 118 n.2 (1973) (listing Pennsylvania among several states with statutes similar to Texas).
56. Compare id. at 119 n.3 (citing Texas state court opinions referring to state's "compelling interest to protect fetal life" and intention of abortion statute to protect fetal life), with Commonwealth v. Page, 303 A.2d 215, 217-18 & n.7 (Pa. 1973) (noting similarity of Pennsylvania and Texas statutes), and Mills v. Commonwealth, 13 Pa. 630, 632 (1850) (noting historical common law prohibition of abortion as crime against nature once fetal life has begun).
57. See Roe, 410 U.S. at 118 (noting Texas statute excepted from prohibition abortions procured by medical advice to save mother).
58. See id. at 139 & n.36 (listing Pennsylvania among three states with this standard). 58. Id. at 162.
59. Id. at 153.
60. Id. at 155-56.
61. Roe, 410 U.S. at 163-64.
62. 18 PA. CONS. STAT. §§ 3201-3220 (1998).
63. Id. § 3205.
64. Id. §§ 3210-3211. 65. Id. § 3214.
65. Id. § 3212.
66. Id. § 3216.
67. Id. § 3204(c).
68. Id. § 3202.
69. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 928 & n.4 (1992) (Blackmun, J., concurring in part and dissenting in part) (suggesting Pennsylvania regulations rest on conception of women that is subject to equal protection attack); Fischer v. Department of Pub. Welfare, 502 A.2d 114, 120 (Pa. 1985) (noting challenge based on equal protection provision of state constitution).
70. See, e.g., Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 759 (1986) (concluding challenged provisions improperly subordinated woman's privacy right to make decision regarding her pregnancy), overruled, in part, by Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
71. See, e.g., Fischer, 502 A.2d at 120 (noting argument that indigent women were suspect class).
72. See, e.g., Planned Parenthood, 505 U.S. at 844 (noting challenge to Pennsylvania provision requiring spousal notification).
73. 505 U.S. 833 (1992).
74. Planned Parenthood, 505 U.S. at 846.
75. Id. at 874.
76. Id. at 898.
77. PA. CONST., A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE STATE OF PENNSYLVANIA, § 1 (1776), reprinted in 8 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 278 (William F. Swindler ed., 1979).
78. See ROBERT E. WOODSIDE, PENNSYLVANIA CONSTITUTIONAL LAW 569-70 (1985) (noting most of basic freedoms guaranteed in current constitution originated in 1776 Declaration of Rights). See infra note 148 and accompanying text for a discussion of the current language of this provision in the Pennsylvania Constitution.
79. 5 Serg. & Rawle 38 (Pa. 1819).
80. Swift, 5 Serg. & Rawle at 39-40.
81. See In re Trattner's Estate, 145 A.2d 678, 680 (Pa. 1958) (following Swift v. Duffield to hold that unborn child could take under class gift).
82. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 28, at 161 (5th ed. 1984).
83. Id. § 30, at 164-65.
84. See BARRY R. FURROW ET AL., HEALTH LAW § 6, at 233 (1995) (noting contractual elements of early physician liability claims).
85. KEETON ET AL., supra note 83, at 367.
86. See Sinkler v. Kneale, 164 A.2d 93, 95 (Pa. 1960) (noting improved medical knowledge allowed state to recognize fetus as separate from mother).
87. See id. at 95-96 (quoting Smith v. Brennan & Galbraiths, 157 A.2d 497, 502 (N.J. 1960), and holding child not viable at time prenatal injuries were received may still recover).
88. See Amadio v. Levin, 501 A.2d 1085, 1089 (Pa. 1985) (abandoning "live birth" requirement).
89. See Coveleski v. Bubnis, 571 A.2d 433, 435 (Pa. Super. Ct. 1990) (precluding recovery under wrongful death statute because "[b]efore viability, any determination of damages for death of the fetus would be entirely speculative").
90. See FURROW ET AL., supra note 85, § 6, at 234 (describing increases in medical litigation over last 40 years); POST ET AL., supra note 31, § 1:8, at 31 (describing dramatic increases in medical malpractice suits, especially since mid-1960s).
91. See JOSEPH A. SNOE, AMERICAN HEALTH CARE DELIVERY SYSTEMS 3-10 (1998) (describing many alternatives to medical care in 19th-century America, including use of midwives for childbirth).
92. KEETON ET AL., supra note 83, at 369.
93. See AREEN ET AL., supra note 36, at 1369-97 (presenting various perspectives on morality of genetic screening and counseling).
94. See, e.g., York v. Jones, 717 F. Supp. 421, 422-23 (E.D. Va. 1989) (involving dispute between parents and fertility clinic over possession of frozen embryos).
95. See George P. Smith II, Australia's Frozen 'Orphan' Embryos: A Medical, Legal and Ethical Dilemma, 24 J. FAM. L. 27, 27-28 (1985-1986) (noting cryopreservation issue raises inheritance rights and right to life dilemmas).
96. See In re Baby M, 537 A.2d 1227, 1240-42 (N.J. 1988) (invalidating surrogacy and adoption contract as violative of public policy).
97. Bopp et al., supra note 15, at 461-62.
98. Id.
99. Id.
100. Id.
101. Id.
102. Bopp et al., supra note 15, at 462-63.
103. Id. at 463.
104. 1988 Pa. Laws No. 47, P.L. 336 (Apr. 13, 1988), 42 PA. CONS. STAT. § 8305 (1998).
105. See 1 PA. HOUSE LEG. J. 305-06 (1988) (explaining need for statutory prohibition of wrongful life and wrongful birth lawsuits).
106. See, e.g., Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 818 (Pa. Super. Ct. 1993) (raising challenges under due process and equal protection provisions in federal and state constitutions).
107. See id. at 820 (describing various interests at issue).
108. 623 A.2d 816 (Pa. Super. Ct. 1993).
109. Dansby, 623 A.2d at 819.
110. Id. at 818.
111. See id. at 821 (discussing validity of state interests justifying ban on wrongful birth claims). See also 1 PA. HOUSE LEG. J. 306 (1988) (providing statement by sponsor of wrongful birth statute, Representative Freind, suggesting that failing to protect "right to life" of handicapped prenatal children is "illogical and inconsistent" given measures protecting rights of handicapped children and adults).
112. Dansby, 623 A.2d at 816-17.
113. Id. at 818.
114. Id.
115. Id.
116. Id.
117. Dansby, 623 A.2d at 818..
118. Id. at 817-18.
119. See id., 623 A.2d at 819-20 (describing arguments made under Fourteenth Amendment's Equal Protection Clause).
120. See id. at 820 (describing arguments made under article I, section 1 and article III, section 32 of the Pennsylvania Constitution).
121. See id. at 821 (describing argument made under article I, section 11 of the Pennsylvania Constitution).
122. Dansby, 623 A.2d at 821.
123. Id. at 818 (quoting James v. Southeastern Pa. Transp. Auth., 477 A.2d 1302, 1304 (Pa. 1984)).
124. See id. at 819 (noting such regulations have been held not to violate Roe).
125. Id. (citing Harris v. McRae, 448 U.S. 297, 316 (1980)).
126. Id.
127. Dansby, 623 A.2d at 820.
128. Id.
129. Id. at 819.
130. Id.
131. Id. at 820.
132. Dansby, 623 A.2d at 820.
133. Id.
134. Id. at 819.
135. Id.
136. Id.
137. Dansby, 623 A.2d at 819.
138. Id.
139. Id.
140. Id. at 820-21.
141. Id. at 821.
142. Dansby, 623 A.2d at 821.
143. Id.
144. Id.
145. See Bopp et al., supra note 15, at 494 (arguing wrongful birth claim is subject to constitutional and public policy attacks).
146. 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 BROOK. L. REV. 235, 267-72 (1995) (analyzing legislative history of statute to show intent to obstruct women from procuring abortions).
147. PA. CONST. art. I, § 1.
148. WOODSIDE, supra note 79, at 6.
149. Id. at 113.
150. See PENNSYLVANIA CONSTITUTIONAL CONVENTION 1967-1968, PREPARATORY COMMITTEE, A HISTORY OF PENNSYLVANIA CONSTITUTIONS, REFERENCE MANUAL No. 3, 14 (1967) (outlining need for Special Laws provision given nineteenth-century abuse).
151. PA. CONST. art. III, § 32.
152. See, e.g., Fischer v. Department of Pub. Welfare, 502 A.2d 114, 120 (Pa. 1985) (noting appellants raised these state constitutional claims); Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 820 (Pa. Super. Ct. 1993) (same).
153. U.S. CONST. amend. XIV, § 1.
154. 410 U.S. 113 (1973).
155. 505 U.S. 833 (1992).
156. Roe, 410 U.S. at 164-65.
157. See id. at 162 (asserting "the unborn have never been recognized in the law as persons in the whole sense").
158. See Planned Parenthood, 505 U.S. at 879 (plurality opinion) (citing Roe v. Wade, 410 U.S. 113, 164-65 (1973), for proposition that state may regulate abortion subsequent to viability to promote its interest in "the potentiality of human life").
159. Donald Marritz, Making Equality Matter (Again): The Prohibition Against Special Laws in the Pennsylvania Constitution, 3 WIDENER J. PUB. L. 161, 165-66 (1993).
160. Id. at 166; WOODSIDE, supra note 79, at 13.
161. See CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 201 (1986) (describing adoption of "federal ratio").
162. Benjamin Franklin, An Essay of a Declaration of Rights, in 22 THE PAPERS OF BENJAMIN FRANKLIN 512-15, 528-33 (William B. Wilcox ed., 1982).
163. See J.A. LEO LEMAY, BENJAMIN FRANKLIN WRITINGS 1154-55 (1987) (recounting speech given by Franklin in opposition to slavery). Benjamin Franklin was also a member of the federal constitutional convention of 1787. Franklin decided to sign the United States Constitution at the convention, even though he did not approve of several parts of it. He also encouraged other members to do the same for the sake of the nation's unity. BOWEN, supra note 159, at 254-64. Slavery was a hotly debated issue even in Pennsylvania's legislature and its courts. Although Pennsylvania's constitutional principles were more egalitarian than most, the state's statutory laws delayed emancipation into the early 1800s. See PAUL FINKELMAN, THE LAW OF FREEDOM AND BONDAGE: A CASEBOOK 41-68 (1986) (reprinting statutes and common law to show developments in emancipation of slaves in Pennsylvania); ROBERT B. SHAW, A LEGAL HISTORY of SLAVERY 257-59 (1991) (outlining Pennsylvania's gradual emancipation process).
164. See J.A. LEO LEMAY, BENJAMIN FRANKLIN WRITINGS 1154-55 (1987) (recounting speech given by Franklin in opposition to slavery). Benjamin Franklin was also a member of the federal constitutional convention of 1787. Franklin decided to sign the United States Constitution at the convention, even though he did not approve of several parts of it. He also encouraged other members to do the same for the sake of the nation's unity. BOWEN, supra note 159, at 254-64. Slavery was a hotly debated issue even in Pennsylvania's legislature and its courts. Although Pennsylvania's constitutional principles were more egalitarian than most, the state's statutory laws delayed emancipation into the early 1800s. See PAUL FINKELMAN, THE LAW OF FREEDOM AND BONDAGE: A CASEBOOK 41-68 (1986) (reprinting statutes and common law to show developments in emancipation of slaves in Pennsylvania); ROBERT B. SHAW, A LEGAL HISTORY of SLAVERY 257-59 (1991) (outlining Pennsylvania's gradual emancipation process).
165. See J.A. LEO LEMAY, BENJAMIN FRANKLIN WRITINGS 1154-55 (1987) (recounting speech given by Franklin in opposition to slavery). Benjamin Franklin was also a member of the federal constitutional convention of 1787. Franklin decided to sign the United States Constitution at the convention, even though he did not approve of several parts of it. He also encouraged other members to do the same for the sake of the nation's unity. BOWEN, supra note 159, at 254-64. Slavery was a hotly debated issue even in Pennsylvania's legislature and its courts. Although Pennsylvania's constitutional principles were more egalitarian than most, the state's statutory laws delayed emancipation into the early 1800s. See PAUL FINKELMAN, THE LAW OF FREEDOM AND BONDAGE: A CASEBOOK 41-68 (1986) (reprinting statutes and common law to show developments in emancipation of slaves in Pennsylvania); ROBERT B. SHAW, A LEGAL HISTORY of SLAVERY 257-59 (1991) (outlining Pennsylvania's gradual emancipation process).
166. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 502 (1977).
167. Id.
168. 586 A.2d 887 (Pa. 1991).
169. Edmunds, 586 A.2d at 895.
170. 623 A.2d 816 (Pa. Super. Ct. 1993).
171. Dansby, 623 A.2d at 820.
172. Id.
173. Id.
174. Marritz, supra note 160, at 196-209.
175. Id. at 168.
176. Id.
177. Id. at 196.
178. Id. at 197 (quoting Appeal of Ayars, 16 A. 356 (Pa. 1889)).
179. Marritz, supra note 160, at 172.
180. Cf. id. at 196-98 (discussing early era of Pennsylvania case law development prior to Pennsylvania Supreme Court practice of following federal equality doctrine).
181. See Fischer v. Department of Pub. Welfare, 502 A.2d 114, 122 (Pa. 1985) (recognizing state interest in preserving fetal life where state regulation did not infringe on fundamental right or suspect class); Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 821 (Pa. Super. Ct. 1993) (same).
182. See Dansby, 623 A.2d at 820 (describing legitimate state interest "that a handicapped child should not be deemed better off dead and of less value than a 'normal' child").
183. Roe v. Wade, 410 U.S. 113, 162 (1973).
184. See supra note 78 and accompanying text for a discussion of the Declaration of Rights provision of the Pennsylvania Constitution of 1776.
185. Cf. WOODSIDE, supra note 79, at 113 (noting reservation of rights from state government reserves rights "by each person").
186. Pennsylvania's current crime code specifically includes "unborn child" within the scope of its homicide statutes. 18 PA CONS. STAT. §§ 2601-2609 (1998). Historically, feticide was not considered a homicide under Pennsylvania's laws. A prosecutor had to show that the fetus was alive and, in the case of an infant, fully separate from its mother's body, before proving that the defendant killed the victim fetus. Commonwealth v. O'Donohue, 8 Phila. 623 (1871). A defendant who attempted to procure the abortion of an infant in ventre sa mere could be charged with unlawful abortion where the mother was alleged to be "then and there pregnant and big with child." Mills v. Commonwealth, 13 Pa. 630, 632-33 (1850). By reiving on indicia of life and development, the early common law could address the crime against the embryonic life at a time in history when problems of proof of the cause of death were formidable. An early infanticide case describes harsher methods of dealing with problems of proof under the colonial laws where the mother is suspected of killing an illegitimate child. See State v. McKee, 1 Pa. C. (Addison) 1, 3-4 (Allegheny County 1791) (describing 18th-century presumption of murder where mother conceals death of bastard child).
187. Article 1, section 9 of the Pennsylvania Constitution has protected the due process rights of Pennsylvanians since 1776. PA. CONST. art. I, § 9. Recent Pennsylvania case law discusses the due process rights of juveniles under both the Pennsylvania and the United States Constitution. See Commonwealth v. Davis, 586 A.2d 914, 915-16 (Pa. 1991). Federal Eighth Amendment jurisprudence also precludes the state from imposing capital punishment on juveniles. GARDNER, supra note 12, § 6.05, at 151-54 (1997).
188. See, e.g., 18 PA. CONS. STAT. § 3202 (1982).
189. 13 Pa. 630 (1850).
190. Mills, 13 Pa. at 632.
191. Id.
192. See supra notes 74-77 and accompanying text for a discussion of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
193. See Fischer v. Department of Pub. Welfare, 502 A.2d 114, 121 (Pa. 1985) (rejecting challenge to this effect).
194. See 18 PA. CONS. STAT. § 3202(d) (1998) (protecting right of conscience of anyone who refuses to provide or support abortion services).
195. See 18 PA. CONS. STAT. § 3204(c) (1998) (providing abortion for sex selection purposes is never "necessary" abortion permitted under act).
196. Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991).
197. See Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 820 (Pa. Super. Ct. 1993) (noting entitlement to monetary damages in negligence claim has never been fundamental right).
198. 18 PA. CONS. STAT. § 3202(c) (1998).
199. See § 3216 (criminalizing non-therapeutic experimentation on unborn child).
200. See generally BERNARD N. NATHANSON, M.D. & RICHARD N. OSTLING, ABORTING AMERICA 69-71 (1979) (detailing New York's legalization of abortion up to 24th week of pregnancy).
201. See BJ. George, Jr., State Legislatures Versus the Supreme Court: Abortion Legislation into the 1990s, in ABORTION, MEDICINE, AND THE LAW 3, 21-22 (J. Douglas Butler & David F. Walbert eds., 4th ed. 1992) (describing various legislative responses in wake of Roe).
202. Id.
203. See JENNIFER FREISEN, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES § 2-5, 98-104 & nn.163, 165 (2d ed. Michie 1996) (citing Massachusetts and California as examples of states requiring nondiscriminatory funding of elective abortions for indigent women under state privacy provisions).
204. See supra notes 21-30 and accompanying text for a discussion of Pennsylvania's struggle to protect prenatal life.
205. See LA. REV. STAT. ANN. §§ 9:121-133 (West 1991) (defining legal status of human embryos).
206. York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989).
207. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), reheard in part in 1992 WL 341632 (Tenn. Nov. 23, 1992).
208. Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998).
209. York, 717 F. Supp. at 424.
210. Id. at 425.
211. Id. at 427.
212. Davis, 842 S.W.2d at 589.
213. Id. at 590.
214. Id.
215. Id.
216. Id. at 598-603.
217. Davis, 842 S.W.2d at 597.
218. The court stated that there was no statute or case law in Tennessee to guide the decision. Id. at 600.
219. Id. at 601.
220. Id. at 603.
221. Id. at 604. The court considered no interests on the part of the embryos. Consequently, the embryos weighed nothing in the balancing test. Id.
222. The court held that the fertility clinic could follow its normal procedure in "dealing with" unused embryos. Davis, 842 S.W.2d at 604.
223. Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998).
224. Id. at 176-77.
225. Id. at 182.
226. See id. at 176-77 (describing consent form's disposition of embryos for research purposes in event parents cannot decide on disposition).
227. Kass, 696 N.E.2d at 180; York v. Jones, 717 F. Supp. 421, 425-27 (E.D. Va. 1989).
228. Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992).
229. Davis v. Davis, No. E-14496,1989 WL140495, at * 1 (Tenn. Cir. Ct. Blount County Sept. 21, 1989), rev'd, No. 180, 1990 WL 130807 (Tenn. Ct. App. Sept. 13, 1990), aff'd 842 S.W.2d 588 (Tenn. 1992).
230. See Kriger v. Kriger, 454 N.Y.S.2d 500, 502-03 (N.Y. Sup. Ct. 1982) (permitting wife to prevent husband from buying restaurant during divorce action where purchase would destroy wife's right to assets); Storey v. Storey, 835 S.W.2d 593, 598-600 (Tenn. Ct. App. 1992) (finding dissipation of marital assets in violation of court order meets definition of criminal contempt).
231. See Davis, 842 S.W.2d at 604 (honoring father's desire not to father child from embryos). 231. Kass v. Kass, 696 N.E.2d 174, 179 (N.Y. 1998).
232. Pennsylvania State Representative Stephen Freind reiterated this question during discussions of the Wrongful Birth/Wrongful Life bill on the floor of the House. 1 PA. HOUSE LEGIS. J. 306 (1988).