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Society's Choices: Social and Ethical Decision Making in Biomedicine
quest for truth in the courtroom and the quest for truth in the laboratory." These differences still place courts in a uniquely difficult position to assess health policy. Courts must frame their questions under the terms of a case or controversy and the applicable law. Courts do not adopt criteria to help them assess the benefits and harms of a health policy; they only resolve whether a policy is lawful. Also, courts rarely appoint neutral experts. Accordingly, even if they are able to filter out confounded scientific theories, they lack access to the objective expertise necessary for developing health policy. Courts could considerably enhance their ability to assess scientific questions if they systematically appointed neutral experts paid only by the state. Appointed experts could help the court perform a thorough, objective examination of the state of the science, which is essential for sound decision making.
Despite these numerous disadvantages courts have been instrumental in developing several important health policies. I will discuss three areas where courts have made major contributions to health policy-reproductive rights, the right to die, and mental health. The important role of the judiciary in the field of reproductive rights has been well discussed. 10 Beginning with the seminal cases of Griswold v. Connecticut11 and, later, Roe v. Wade,12 the courts for nearly two decades defended the reproductive rights of women. The Supreme Court found a constitutional right to "privacy" even though no mention of the concept appears in the Bill of Rights. The courts used the newly construed right to privacy to prevent the state from interfering with the sale and distribution of contraception.13 The Supreme Court explained that contraception concerns "the most intimate of human activities and relationships."14
The Supreme Court stated that the constitutional promise of privacy protects not only the right to use contraception, but also the right to decide whether to carry a fetus to term.15 It defended a woman's right to choose, and the privacy of her relationship with her physician, through the mid-1980s.16
In recent years, the changing composition of the Supreme Court has led to a significant erosion of reproductive rights and medical privacy. The Court upheld the authority of the state to restrict the use of public employees and facilities for the performance of nontherapeutic abortions.17 The Court also upheld a Department of Health and Human Services regulation prohibiting federally funded family planning clinics from counseling or referring women for abortions.18 The DHHS regulation became known as the "gag rule" because it prohibited funded programs from providing women with objective clinical information about reproductive choices. In Planned Parenthood of Southeastern Pennsylvania v. Casey,19 the Supreme Court changed the legal standard by which to evaluate restrictions on abortion. This decision will have a profound effect on access to reproductive health