ization that increased human suffering, homelessness, and violence in America. I do observe that the judiciary has had a profound, lasting effect in these and other areas of health policy, which other branches of government have emulated.
What factors made these issues particularly suited for judicial decision making? At least one of three factors was common to each of these areas of health policy. First, each issue involved emotionally charged social questions that divided the public. The right to life is perhaps the single most controversial and enduring problem in health policy formulation. The issue of preservation of life is central to both abortion and termination of life-sustaining treatment. While the mental health cases do not engender the same emotion, they still involve sharp differences between professionals and civil libertarians about the right of society to confine and to treat persons with mental illness. Indeed, the culture of the time influenced much of the discourse, and ultimately, litigation. Rosenhan's " On Being Sane in Insane Places,"41 Szasz's "Myth of Mental Illness,"42 and Goffman's "Asylums" 43 each symbolized the antipsychiatry movement of the day. Courts in some ways are uniquely suited for dealing with such areas of social divisiveness. They can often remain aloof from the controversy and rely on "neutral'' legal doctrine. The legislative and executive branches of government are more vulnerable to interest groups, lobbyists, and financial pressures.
The second factor common to at least one of these health issues is the absence of formal policy existing at the time of the litigation. When the New Jersey Supreme Court was deciding Karen Quinlan's case, there was little legislative or executive guidance on the termination of life-sustaining treatment. The court was simply deciding the case with which it was presented. It had to craft a reasoned decision based upon traditional legal and ethical principles: respect for persons, autonomy, and privacy. The courts that followed Quinlan had to look to prior judicial decisions in other jurisdictions because the legislatures, for the most part, still had not acted.44 The courts in the right-to-die cases appeared to be filling a vacuum in policy. This second factor suggests that the courts are more likely to intervene in areas where there was lack of consensus or established policy.
Prior to 1973, some liberalization in the scope of lawful abortions was evident in several legislatures, but few statutes approached the breadth of the privacy right decreed by the court in Roe. Most of the existing legislation was haphazard and inconsistent. It often did not balance individual interests with those of the state.45 It is an open question as to whether the Supreme Court would have intervened in quite so decisive a manner if more settled policy on abortion rights had existed. The Court moved, at least in part, because of the absence of a national consensus on the issue.
Judicial decisions in mental health cases, unlike abortion or right-to-