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Society's Choices: Social and Ethical Decision Making in Biomedicine
The institutional strengths and weaknesses of courts have been revealed in instances where new treatments raised ethical questions that were submitted to the courts. For example, judicial leadership on questions concerning the use of life-supporting technologies began with the New Jersey Supreme Court's decision about Karen Ann Quinlan's right to be disconnected from a life support system. Since then, a series of decisions by federal and state courts on refusing or withholding care have guided the nation's policy on these issues. Most significant was the Supreme Court's decision in Cruzan, which held that competent patients had a "liberty interest" in refusing treatment and provided an impetus for state legislation. Many state courts have extended this right of refusal to people who are incapable of making a decision by respecting the decisions of surrogates, particularly family members (see the background paper by Gostin in this volume).
In some cases, courts have turned to other bodies for guidance in defining the circumstances under which treatment can be terminated. The President's Commission report on foregoing treatment was instrumental in leading most courts to reject the distinction between withholding and withdrawing treatment, between ordinary and extraordinary treatments, and between terminal and nonterminal cases. In other cases, courts have acted independently to set out procedures and criteria for decision making, ranging from second opinions to the use of ethics committees or ombudsmen.
Many times state legislatures became involved in these issues; they acted only some time after court decisions and usually followed policies implicit in those decisions. The most recent national actions in this area came about when Congress passed the Patient Self-Determination Act, which was implemented on December 1, 1991. The law requires health care providers to inform their patients of the right to accept or refuse medical care, including the right to give advance directives on the use of medical means of sustaining life. Other times, state legislative action has preceded court decisions and set policy in this area, most notably in natural death acts, determination of death (which many states enacted before any court action as well), surrogacy, and, in recent times, reproductive decisions. An example is the California Natural Death Act of 1976, which preceded all court decisions, including Quinlan.
Courts have also been involved in a major way in the field of reproductive rights. Beginning with the landmark cases of Griswold v. Connecticut and Roe v. Wade, the courts for nearly two decades defined the reproductive rights of women. In the early cases, the Supreme Court found a constitutional right of "privacy" even though no mention of the concept appears in the Bill of Rights. In Griswold the Court used the newly identified right to privacy to prevent states from interfering with the sale and distribution of