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Society's Choices: Social and Ethical Decision Making in Biomedicine
contraceptives. The Court explained that contraception concerns "the most intimate of human activities and relationships."
In Roe the Supreme Court stated that the constitutional promise of privacy protects not only the right to use contraceptives but also the right to decide whether to carry a fetus to term and the privacy of a woman's relationship with her physician (see the background paper by Gostin in this volume). In recent years, there has been a significant erosion of privacy rights. The Court has upheld the authority of the state to restrict the use of public employees and facilities for the use of nontherapeutic abortions (see Gostin). The Court also upheld a regulation prohibiting federally funded family planning clinics from counseling or referring women to abortions (the so-called "gag rule") (see Gostin). In Planned Parenthood of Southeastern Pennsylvania v. Casey (see Gostin), the Court changed the legal standard by which to evaluate restrictions on abortion. This rule may allow states to place new restrictions on access, timing, and information provision in abortion decisions.
In spite of these retrenchments, it has been argued that the extension of the right to privacy since 1965 has had profound and positive effects on reproductive policy (see Gostin). Prior to the Supreme Court's entry into the area, neither the legislative nor executive branch produced policies that adequately recognized the need to balance the interests of pregnant women against those of the state or the fetus. Current efforts to protect reproductive privacy use the same "fundamental rights" analysis that the Supreme Court employed in Roe v. Wade. State legislatures are also emulating thoughtful court rulings on related reproductive issues such as surrogate motherhood and artificial reproduction.
Courts will continue to play an important role in the deliberation of emotionally charged issues in health care and biomedical innovation where no formal policy is in place and where there is a fundamental claim of human rights by individuals and groups. If, as has frequently occurred in certain states, legislators have not proactively addressed issues of this character that flow from biomedical advances, the courts have been and will be required to take the lead in resolving the legal and ethical issues that arise in particular cases. For, while legislatures may choose not to act, courts cannot avoid this burden once a case is before them. For example, courts have been involved in such issues as the right to die and the ownership of sperm in a sperm bank. If no statute provides a definite answer, courts must decide which precedents seem most helpful, whether the scientific aspects are supported by sound data, whether the common law provides guidance, and so on. Many court decisions in these areas read like laws-some even set up specific administrative procedures to handle future cases-and they provide a blueprint for subsequent legislation. Courts will also continue to play a significant secondary role through their power to review federal regulations.