Legal Trends in Bioethics (Spring 2007)

A ONE-TIME INTRODUCTION TO UNDERSTANDING LEGAL TRENDS IN BIOETHICS

The laws governing bioethics issues are con- fusing and sometimes contradictory because of several types of tensions inherent in our legal system. Legislatures and courts work in differ- ent time frames and with different priorities. The U.S. constitutional guarantees of separation of church and state and individual rights make bioethics issues involving personal, moral, or religious convictions particularly contentious.

Each state also has its own constitutional protections, some of which clearly mirror those in the federal Constitution and others that don't.

Legislatures and courts play different roles in our constitutional republic. Legislatures are by nature democratic and can react relatively quickly to changes in the political climate. Courts, on the other hand, are inherently anti- democratic. As a matter of fact, their main con- stitutional function is to protect the rights es- tablished by our various constitutions from vio- lation by legislative action. Courts are also in- herently conservative in their reaction to events because they are bound by precedents and pro- cedural processes that are designed to assure that major philosophical changes happen gradually.

Legislatures and courts, in the area of bio- ethics, also act under the existence of two con- trary presumptions. Legislatures tend to act with a presumption in favor of prevailing moral be- liefs. The courts, on the other hand, have the structural and theoretical obligation to protect individuals from majoritarian decisions that un- necessarily violate their constitutionally pro- tected freedoms. They also have an obligation to uphold the separation of church and state. So, in bioethics cases, courts often have to deal with preventing governments, either through legislation or other state action, from imposing moral or religious preferences on individuals who might not agree. Thus courts tend to show greater deference to individual choice than leg- islatures do, and tend to become more cautious the more divisive the issue.

An understanding of these inherent tensions between legislative and judicial action and the various individual interests being balanced by the courts will make it easier to understand le- gal trends in bioethics.

LIFE AND DEATH DECISIONS CONTRARY TO PATIENTS' WISHES

In the last three decades the pendulum has swung from focusing on the right to refuse or withdraw treatment to the right to demand treat- ment, and now may be stabilizing in recogni- tion of the inherently private nature of such de- cisions. In the 1970s, 1980s, and early 1990s, most end-of-life treatment disputes involved patients1 or patients' families seeking support in their efforts to stop treatment. This was re- flected in court cases and in the flood of state advance directive legislation and even in a pub- lic movement to legalize forms of aid in dying. In subsequent years, this trend reversed, mostly due to the growing political influence of the right-to-life movement. Advance directive laws were amended to make them more restrictive and, while in Oregon the Death with Dignity Act was approved twice by public referendum, similar propositions in other states such as Cali- fornia and Washington failed repeatedly. Sud- denly there were more cases in which patients or their surrogates were demanding treatment rather than refusing it.

In just the past few years, however, there has been some resistance to these developments. Several 2005 polls regarding the highly publi- cized Terri Schiavo case found that Americans were fairly evenly divided on whether Terri's feeding tube should be removed or not, had a slight bias in favor of having her husband rather than her parents make the decision, and con- sistently felt strongly that the federal govern- ment should not be involved.2 In one poll when people were asked, "If a patient has been in what doctors call a 'persistent vegetative' or coma-like state with no higher brain activity for a significant amount of time, who do you think should make the decision whether the patient should be kept alive or not: The person's par-