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Society's Choices: Social and Ethical Decision Making in Biomedicine
policy begun to shift to federal and state legislatures. The Supreme Court's decision in Cruzan provided an impetus for the move to legislative policymaking on the right to die.36 In Cruzan, the U.S. Supreme Court upheld the decision of the Missouri Supreme Court to adopt a clear and convincing evidence standard for the termination of life-sustaining treatment. The Supreme Court never mentioned the word "privacy" in its decision. Instead, it found that competent patients had a "liberty interest" to refuse treatments. The Court did not view the individual's liberty interest as "fundamental''; this suggested that the state interest in preserving life could prevail.
Legislatures began to conceive of ways in which the decisions of persons to refuse life-sustaining treatments could be more routinely respected. In her concurrence in Cruzan, Justice O'Connor gave some guidance by suggesting that the Court might in the future constitutionally protect the advance directives of patients. In 1990, Congress enacted the federal Patient Self-Determination Act, with an implementation date of December 1, 1991. The Act conditions health care providers' receipt of Medicare or Medicaid dollars on their provision of written information at the time of admission about patients' rights under state law to accept or refuse medical treatment and to formulate advance directives. Since Cruzan, state law on advance directives has increasingly been crafted by legislatures.
The field of mental health policy shows a similar pattern of judicial leadership followed by legislative enactment. During the 1970s, the courts began a process that would transform mental health policy in America. The courts struck down mental health statutes as unconstitutionally vague and insufficiently related to the states' valid interests in protecting the public from harm.37 The courts refused to allow broad discretionary language in civil commitment statutes if it described psychiatric decision making purely in medical terms, such as "mentally ill," "in need of treatment," personal "welfare," or "best interests." Nor would the courts allow civil commitment in the absence of rigorous due process including the right to notice, counsel, and a hearing. 38 The courts constitutionally required the standard of proof at civil commitment hearings to be more than a preponderance of evidence; typically, commitment demands "clear and convincing evidence."39 More recently, the courts also developed standards for refusal of treatment by persons with mental illness.40 Mental health legislation in America has been fundamentally reformed to comply with the constitutional requirements set by the judiciary.
I do not argue here about whether judicial policies in these three areas have been effective. Some have claimed that abortion cases too rigidly adhered to the scientifically and socially questionable trimester framework; that the right to die cases gave insufficient weight to the need to preserve life; and that the mental health cases led to a decade of deinstitutional-