dissenting:
T 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.
[ 42 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 18. This further undermines the legal analysis in this decision and the lead opinion's conclusion that the Act is constitutional.
I. STANDARD OF REVIEW
1 43 In a brief, two-paragraph analysis, the lead opinion has abandoned our carefully crafted and long relied-on analytic model in article I, section 11 cases. The 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 rejection of a heightened level of serutiny 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 serutiny. A mere rational basis is insufficient for the legislature to intrude upon or eliminate religious liberty,1 habeas corpus, see, e.g., Currier v. Holden, 862 P.2d 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, see, e.g., In re Criminal Investigation, 7th Dist. Ct., 754 P.2d 633, 640 (Utah 1988), unreasonable searches and seizures, see, e.g., Allen v. Trueman, 100 Utah 36, 57, 110 P.2d 355, 365 (Utah 1941) (Wolfe, J., concurring), freedom of speech and of the press, see e.g., West v. Thomson Newspapers, *451872 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 presumption 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. Faiview City, 2002 UT 79, ¶ 87, 57 P.3d 1007, that he does not regard article I, section 11 as having any substantive content.
{44 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 P.2d at 365, "[Imjoreover, a court will exercise stricter serutiny 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 Aircroft Corp., 717 P.2d 670, while acknowledging 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 abrogation of old ones, Id. at 676, we stated "the basic purpose of Article I, section 11 is to impose some limitation on that 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 1, section 11 in the Utah Constitution. Horton v. Goldminer's Daughter, 785 P.2d 1087, 1098 (Utah 1989).
145 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 P.2d 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 civilized society have in the integrity of their persons, property, 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 ¶ 40, 57 P.3d 1007 (citing Berry, 717 P.2d at 676). This court has also held that "(al constitutional guarantee of access to the courthouse was not intended by the founders to be an empty gesture[.]" Berry, 717 P.2d at 675.
146 Contrary to the position taken by the lead opinion, this court has consistently rejected the presumption 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 legislative action must be reversed once it is shown that the enactment under serutiny does, in fact, infringe upon the interests enumerated in article I, section 11." Id. at 368 (Zimmerman, J., concurring in part).
€ 47 In its rejection of a heightened level of serutiny for article I, section 11 challenges, the lead opinion rejects long-standing prece*452dent. 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.
48 The lead opinion cites three cases for its assertion that a presumption of constitutionality is the applicable 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. Id. 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 had under the statute alone. Id. 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 before 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).
T49 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 constitutionality] by any substantial meritorious argument, and (2) that many of our sister state courts have held similar acts to be constitutional." Id. 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 legislature needs no more than a minimal reason for overriding a constitutional guarantee.
150 Although this court has not recognized the guarantee included in article I, section 11 as "fundamental," as Justice Zimmerman has noted, "I do not think we intended to denigrate the importance of the rights protected from legislative abridgement by article I, section 11." Condemarin, 775 P.2d at 367 (Zimmerman, J., concurring in part). This court has wisely avoided the "analytical straitjacket" of federal equal protection analysis by avoiding a rigid test that dictates that some rights are fundamental and others are not. Id. Instead, regarding article I, section 11 rights, this court should examine in an individualized 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).
II. ARTICLE I, SECTION 11
1 51 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.
152 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 gesture," but was intended to guarantee a judicial remedy for injury to one's person, property or reputation. Id.
153 The constitution leaves room for the legislature to define, change and modernize the law, but article I, section 11 limits the *453legislature'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 Loney v. Fairview City, 2002 UT 79, 57 P.3d 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 "substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different." 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.
154 The Utah Wrongful Birth Act (the "Act"), enacted 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 permitted 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.
1 55 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, ¶ 38, 980 P.2d 1171, 1184. Therefore, the question is whether a legal remedy for wrongful birth existed in Utah in 1983 when the Act was passed.
56 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 availability 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, ¶ 53, 974 P.2d 1194, 1209 (Stewart, J., concurring) (noting "Seetion 11 protects a citizen's right to a remedy rather than causes of action as such [.]") (emphasis added).
1 57 Here, plaintiffs were injured in person and property. First, their personal right to make informed, lawful decisions regarding medical treatments and procedures 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 characteristic. -It is irrelevant what the exact injury is called if it 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. Therefore, 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
*454legal 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.
1 58 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 "[in an action for wrongful 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, Northeast Indiana Genetic Counseling, Inc. v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000) (stating that it is unnecessary to "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 traditional tort and medical malpractice law); Arche v. U.S. Dept. of Army, 247 Kan. 276, 798 P.2d 477, 479 (1990) (applying medical malpractice and a negligence analysis, with standard elements of negligence, to wrongful birth claim); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483, 493 (1983) (en bane) (holding action for wrongful birth "fits within the conceptual framework of our law of negligence").
T59 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 ¶ 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 providing negligent medical advice regarding potential birth defects of a fetus. Id. at 189-90. After finding a duty and a possible breach, this court concluded that the "[plarents had a remedy against the state defendants for injuries 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 ... defendants for injuries arising out of . negligen[ee]," 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.
T60 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 recognized that physicians who perform testing and provide advice relevant to the constitutionally guaranteed procreative choice ... have a corresponding obligation to adhere to reasonable standards of professional performance.
Id. at 189 (emphasis added).
1 61 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
*455v. Shipler, 869 P.2d 968, 970 (Utah Ct.App.1994) (noting that in Payne, 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, 247 Kan. 276, 798 P.2d 477, 479 (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.
T 62 In addition, Utah has joined the majority of jurisdictions that have recognized an action for the closely related claim for wrongful pregnancy. "Wrongful pregnancy" denotes parents "bringling] 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."2 C.S. v. Nielson, 767 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 preparing or dispensing a contraceptive prescription." Id. at 506. In Melson, 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 defendant's negligence the parents would have terminated the congenitally or genetically defective fetus by abortion." Id. at 506 n. 4. Nielson did not exeept Utah from that list.
T 63 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 vindicated the same rights. I conclude that it did. Wrongful birth is a garden-variety medical malpractice claim requiring 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 substantial 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 same rights as a "wrongful birth" cause of action was recognized in 1983 and is protected by the constitution.
T 64 The next inquiry is whether the Act provides an effective and reasonable alternative remedy for the remedy 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 constitutional 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 statutes of limitation or statutes of repose), or Conde-marin (an article I, section 11 challenge based on a liability cap for medical malpractice), the Act provides no remedy whatsoever, completely cutting off an injured plain*456tiff's access to the courts. See Craftsman, 1999 UT 18, ¶¶ 19-23, 974 P.2d 1194; Condemarin, 775 P.2d 348; Horton v. Goldminer's Daughter, 785 P.2d 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.
T 65 In Nielson this court acknowledged that "[Itlhe 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 [sterilization] should be held to a lesser standard of care than a physician or surgeon who performs any other surgical procedure." Id. at 508. This court also warned that "[sluch 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. Mielson's reasoning applies equally to plaintiffs' claims of negligent testing and counseling.
T66 The only major difference between Nielson and the instant case is that in Miel-son 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 injuries 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 negligence resulting in birth of a physically or mentally impaired child where the parents were denied information in the choice to terminate the pregnancy, the Act fails the first prong of the Berry test.
T67 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 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. 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 legislative history.
T 68 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 for 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, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), it *457cannot be considered a "social evil" for the purposes of article I, section 11.3 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. Additionally, 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 unreasonable means for achieving the objective.
T 69 In sum, the Act fails the Berry test. First, it precludes a remedy for wrongful birth based upon negligence, 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
T70 The majority opinion holds that the legislature's refusal to permit recovery for wrongful birth is permissible in that its action does not interfere with federal or state constitutional due process. I disagree.
A. Federal Due Process
T71 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, 98 S.Ct. 705, 85 L.Ed.2d 147 (1978). Sinee 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. 888, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion); Stenberg v. Carhart, 580 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 748 (2000) (adopting 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, 112 S.Ct. 2791 (emphasis added). An obstacle is substantial if it is "calculated [not] to inform a woman's free choice, [but tol hinder it." Id.
T 72 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, 112 S.Ct. 2791 (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." Id. 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 the Due Process Clause of the United States Constitution and is invalid. Id. at 877.
T 73 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.
T 74 The majority opinion notes that "[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' " Maj. Op. at 118 (citation omitted). It then con*458tends that it "need not examine the legislative history of th{is] statute to discover the legislative intent." Maj. Op. at 119. 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.
T75 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. Aguillard, 482 U.S. 578, 586, 107 S.Ct. 2573, 96 L.Ed.2d 510 (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, 107 S.Ct. 2578 (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 inqui-
T76 In fact, the United States Supreme Court has even noted that a court does not need to accept a legislature'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, 107 S.Ct. 2573 (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 cireumstances was unconstitutional).
77 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 the Act 4 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.
178 Looking at the statute as a whole, it seeks to "respect the life of 'unborn per-song' " 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 *459and second sections of the Act is that there is such an unconstitutional motive. The purpose of the Act is to 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.5
T79 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 Legislative 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 Wrongful Life, supra ¶ 67, at 224 n. 747 and accompanying text; Salt Lake Trib., June 20, 1999, at CT (quoting Lynn Wardle, the Act's drafter, as stating "there are a lot of people who believe abortion is an abhorrent moral crime, so the purpose was to protect them from being forced by pressures to be collaborators or accomplices in something they find morally6 Two of the four frightening implications were that the wrong ful life concept may "eliminate virtually all handicapped children" and "increase the incidence of sex-selection abortions." Id. (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 handi-eapped newborns (who somehow slip through the sereening programs) do not survive").7 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 sereening 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.
1 80 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 ¶ 67, at 224 n. 747 and accompanying text. The proponents reasoned that if wrongful birth actions were allowed, physicians would routinely perform genetic testing in order to avoid malpractice 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 *460Act anticipating that the uninformed 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 fundamental 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.
T 81 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 question of whether the statute had an improper effect a "closer question," I will discuss this prong as well. Maj. Op. at T21. I point out, however, that this discussion is necessarily 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.
182 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 so 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).
183 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 information, a deterrent function that is at the core of all American tort law. See, eg., Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496, 499 (1976) ("For this court to endorse a policy that makes physicians liable for the foreseeable consequences of all negligently performed operations except those involving sterilization would constitute an impermissible infringement of a fundamental right."). The Act, through removal of this deterrent, sends a message condoning, 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 relevant to the constitutionally guaranteed procreative choice ... have a corresponding obligation to adhere to reasonable standards of professional performance." Payne, 743 P.2d at 189 (emphasis added). The majority concludes that the Act does not create a "safe harbor for health care professionals who withhold information" because it is likely that other claims and professional discipline may result from intentionally withholding information. Maj. Op. at T° 21, 24 (noting breach of contract as an example of a claim that may still exist). The problems associated with the regulatory process and/or criminal remedies are entirely unaddressed by this record, and I cannot agree that the majority's assertion is accurate. Furthermore, the Act also creates a safe harbor for doctors who negligently provide information regarding the health of the fetus that may still infringe upon a woman's right to make an informed choice regarding a pregnancy, as was alleged here.
1 84 In addition, the majority opinion goes on to say that "just because one cannot sue her physician for wrongful birth ... [does not necessarily mean that physicians who disfavor abortion] are therefore inclined not to reveal information that would likely influence a woman to abort an unborn child." Maj. Op. at 22 (citation omitted). In essence, this is an argument that the Act will not induce doctors to practice less carefully or to withhold information from women seeking abortion. Of course, I agree that though the Act may not induce doctors to intentionally withhold information, it nonetheless insulates them from liability for providing negligent information. This undermines a fundamental *461theory of tort law, that the imposition of sanctions on negligent behavior will deter such behavior. Further, even the drafters of the Act recognized that it would have some effect on doctors, since they purported to draft it in part to protect anti-abortion doe-tors from having to perform prenatal tests that would reveal information about the health of a fetus. Materials of Legislative General Counsel on S.B. 149.
1 85 In addition, the majority opinion notes that the Act does nothing to hinder a woman "who has made the decision" to abort a fetus; this observation misses the point. Maj. Op. at 123. The point is that the Act condones the placing of substantial obstacles in the path of one seeking to make an informed decision about an abortion. Therefore, in addition to the Act's purpose to prevent abortions, its effect is to obstruct the right to informed reproductive choice. Accordingly, the Act creates an undue burden on constitutionally guaranteed rights, violates due process principles, and is unconstitutional.
[ 86 Justice HOWE concurs in Part I of Chief Justice DURHAM's dissenting opinion.. 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 importance 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.
. 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 occasionally 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 actions 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 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. 'Wrongful life' is the corresponding action by or on behalf of an impaired child alleging that but for the medical 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).
. 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).
. 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, development, 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 support, or imposing a penalty, in any action.
Utah Code Ann. § 78-11-23-25.
. 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).
. 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.