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Matters of Life and Death: The Role of the Courts

Indianapolis Star, April 24, 2005

Controversies in bioethics routinely land in the courts. The question whether to withdraw artificial nutrition and hydration from Terri Schiavo was an extreme example.  It generated more than a dozen opinions by state and federal courts between 2000 and 2005, as well as statutes from both Congress and the Florida legislature.

But other bioethical dilemmas also capture the attention of judges. Courts have decided scores of abortion cases since Roe v. Wade in 1973 and probably hundreds of life-sustaining treatment cases since the Karen Quinlan decision in 1976.

The role of courts in addressing bioethical controversies is not surprising.  More than 150 years ago, Alexis de Tocqueville observed that "There is hardly a political question in the United States which does not sooner or later turn into a judicial one."

Yet many people contend that important moral issues should be decided not by unelected "activist" judges, but by legislators answerable to the public at the ballot. In the wake of the courts' decisions to permit the withdrawal of Schiavo's feeding tube, for example, U.S. Rep. Tom DeLay condemned what he considered an "arrogant, out-of-control, unaccountable" judiciary. Judges themselves, when faced with bioethical controversies, frequently observe that the issues would be better resolved through the legislative process.

In fact, legislatures often have enacted valuable statutes in bioethics.  When court decisions governing the withdrawal of treatment in Illinois drove Rudy Linares to hold hospital staff at bay with a gun while he turned off his son's ventilator, the Illinois legislature responded with a highly regarded statute to guide end-of-life decisions. In Indiana, laws passed by the General Assembly have increased the availability of organs for transplantation.

Nevertheless, courts should play a major role in the resolution of controversies in bioethics. When the judicial process might clarify a moral dilemma, the political process can distort it. People following the Schiavo case by listening to U.S. Sen. Bill Frist would have thought that Shiavo's prognosis was uncertain and that she could have regained consciousness with more aggressive treatment. By reading the Florida courts' opinions, on the other hand, the public would have realized that Schiavo's brain had mostly liquefied and that her unconsciousness was truly permanent.

Similarly, many legislators greatly exaggerate the promise of adult stem cell therapy when objecting to the development of medical therapies from embryonic stem cells. Courts generally do a better job than legislatures of sorting through conflicting characterizations of medical data.

The political process can make it more difficult to base public policy on sound moral thinking because a single piece of legislation may regulate multiple medical practices that have very different ethical standing. Consider, for example, Senate Bill 268 before the Indiana General Assembly this year.  It would prohibit cloning when used to create children, a very troublesome idea, but it also would ban the use of cloning techniques to treat serious and irreversible illnesses like Alzheimer's disease, heart failure and cirrhosis of the liver.

Many legislators who support the therapeutic potential of cloning nevertheless voted for SB 268 to ensure that cloning is not used for reproductive purposes.  Courts address each bioethical dilemma on its own and can therefore give each controversy its ethical due.

But perhaps the most important reason for turning to the courts is the fact that morals cannot always be decided by a majority vote.

Fundamental principles are essential not because they have popular support but because they rest on basic moral truths. Thus, while legislatures once permitted racial discrimination in many states because the majority preferred a discriminatory society, the courts stepped in to vindicate the key moral principle of equality. Appointed judges are in a much better position than elected legislators to side with moral principle when it is the will of the majority to do otherwise.

Or to put it in other terms, we have a democratic form of government in which public policy is typically determined by the wishes of the majority.  But we also are a constitutional democracy that guarantees fundamental rights to all people, regardless of the majority's preferences. The right to have children or to practice one's religion cannot be taken away no matter how many people vote to do so.

Because bioethical controversies frequently implicate the fundamental interest in making decisions about medical care, we must reserve a major role for the courts in resolving those controversies.

David Orentlicher, a state legislator, is co-director of the Center for Law and Health at Indiana University School of Law and on the faculty of the IU School of Medicine and IU Center for Bioethics.


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