Health Law and Policy Commons^™

Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead

Journal Articles

The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, …

Dynamic Complementarity: Terri's Law And Separation Of Powers Principles In The End-Of-Life Context, O. Carter Snead

Journal Articles

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly …

Rights And The Need For Objective Moral Limits, Charles E. Rice

Journal Articles

In this article, we will examine the natural law conception that rights are rooted in human nature, which nature itself is of divine origin through creation. We will compare this natural law concept to the premises and social consequences of the secular, relativist, and individualist approaches common to the jurisprudence of the Enlightenment. This article will offer the conclusion that only a grounding of right in the nature of persons as immortal beings created by God can offer moral and cultural security against the depersonalization characteristic of regimes premised on a relativist individualism.

Troxel And The Limits Of Community, Margaret F. Brinig

Journal Articles

The Troxel grandparent-visitation case that frames this symposium, the Washington statute included in Troxel, the mercifully completed odyssey of Cuban-born Elian Gonzalez, and the "right to die" case of Hugh Finn all illustrate both the fervor with which the broader community justifies its involvement with families and the extremes to which this involvement can spread. Using constitutional language, advocates point out the rights of extended family members to continue or strengthen ties to children, whether adult or minor. On the other side, parents and spouses claim their own rights not to have outsiders second-guess or interfere with their decisions.

Though …

Catholic Health Care And The Diocesan Bishop, John J. Coughlin

Journal Articles

Over the course of the last decade, the provision of health care in the United States has been undergoing a radical transformation. The days when an insurer, such as Blue Cross and Blue Shield, paid a standard fee to a physician who provided a specified service to an individual patient are passing rapidly. This fee-for-service concept, which characterized American health care from the end of World War II until the 1990s, is being supplanted by a variety of arrangements that fall under the general rubric of "managed care." The fundamental approach of managed care is to provide the patient with …

Managed Care, Assisted Suicide, And Vulnerable Populations, M. Cathleen Kaveny

Journal Articles

While advocates of physician assisted suicide consider it a core aspect of individual autonomy legalizing the practice is extremely dangerous and puts the most vulnerable members of our society at risk. Legalized physician assisted suicide takes away the autonomy of the decision to die and makes it an option in a flawed healthcare system, where patients are often denied coverage for medical expenses by employer-sponsored benefit plans and medical insurers are concerned primarily with cutting costs spent on each patient. Complexities in the way that physicians are compensated under the current system of managed care is also eroding their responsibility …

Euthanasia, Morality, And Law, John M. Finnis

Journal Articles

"Arguments for legalising euthanasia rely on claims about autonomy rights, or claims about political pluralism, or on both sorts of claim. My response will make three main points. First, those demanding this legalisation have shirked their elementary obligation to describe the alleged right, identify who has it, and delineate its boundaries as a right supposed to trump other goods, interests, and the wellbeing or rights of others. Second, they have neglected, or at best hugely underestimated, the casualties who would be, and in some places already are being, created by the success of their campaign. Third, they proceed on an …

Public Reason, Abortion, And Cloning, John M. Finnis

Journal Articles

Every society, liberal or illiberal, takes a public stand on the question whether abortion is or is not a form of criminal activity. If that question were left to private judgment, people who judge it homicide would be entitled to use force to prevent their fellow citizens engaging in it.

The need for the law and public policy to take a stand has become more and more obvious for two reasons. The first has to do with the standard purpose of abortion, as that term is commonly used: to end the life of a fetus/unborn child. As Jeffrey Reiman argues …

South Bend, Indiana: A Case Study Of The Possibilities And Realities Of Hospital Cooperation, Joseph P. Bauer

Journal Articles

South Bend, the county seat of St. Joseph County, Indiana, is a city with a population of slightly more than 100,000. Located about 100 miles from Chicago, it serves many of the educational, financial and health care needs of a five county metropolitan area of over 700,000 people. South Bend and its sister city, Mishawaka, are served by four general hospitals. The two largest each have about 40 percent of the available beds in the community. One of them, Memorial Hospital of South Bend, is a not-for-profit corporation which is unaffiliated with any other hospital; the other large hospital, St. …

The Legality And Morality Of Using Deadly Force To Protect Unborn Children From Abortionists, Charles E. Rice, John P. Tuskey

Journal Articles

Is killing abortionists as they arrive at abortuaries to perform regularly scheduled abortions a legally justifiable use of force in defense of another person's life? Under commonly accepted criminal law principles of justification, a person normally is entitled to use force—even deadly force—when necessary to save a person's life from an aggressor bent on taking that life. But because Roe and its progeny have made abortion a constitutionally protected right, courts would predictably hold that using force against an abortionist is not legally justified, despite the fact that the motive for that force is to defend innocent human life.

Even …

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

The "Value Of Human Life" And "The Right To Death": Some Reflections On Cruzan And Ronald Dworkin, John M. Finnis

Journal Articles

These reflections focus on three members (one professor and two alumni) of my Oxford college. Though University College officially bears the name The Great Hall of the University of Oxford, it is only one of that university's 30 colleges, and not a particularly large one-only about 450 students and teaching fellows like myself. My title's focus on one named law professor may already seem narrow. How then, you may wonder, can adding two more names from the same little institution in England make this lecture less parochial, and more relevant to Southern Illinois?

Note, Lead Poisoning In Children: A Proposed Legislative Solution To Municipal Liability For Furnishing Lead-Contaminated Water, Anthony J. Bellia

Journal Articles

Lead poisoning has become one of the most widespread and serious environmental diseases facing children in the United States. In response to the problem of childhood lead exposure, the Environmental Protection Agency (EPA) has promulgated expansive regulations to reduce drinking water lead levels. However, the regulations are not without significant gaps and shortfalls. Many improvements that the EPA requires need not be in place for years, and some households at risk of unsafe lead exposure receive no regulatory protection at all. One question that arises amidst these regulatory gaps is whether a plaintiff can hold a public water system liable …

Issues Raised By The Abortion Rescue Movement, Charles E. Rice

Journal Articles

The civil rights protests of the fifties and sixties taught the nation about the relation of the enacted law to the higher law of justice. Though less favorably publicized, the abortion rescue movement provides another such teaching moment today. As with the civil rights protests, the abortion rescue movement involves ordinary people putting their bodies on the line-and in jail-to vindicate their conception of justice. The rescue movement raises issues that transcend the question of whether one approves or disapproves of abortion. This paper examines what society might learn from the Operation Rescue movement about the weaknesses of our law.

Implications Of The Coming Retreat From Roe V. Wade, Charles E. Rice

Journal Articles

In Thornburgh v. American College of Obstetricians and Gynecologists, the Supreme Court held unconstitutional Pennsylvania statutes which required that (1) pregnant women give "informed consent" to an abortion and that they be provided information as to the characteristics of their unborn child, the nature and risks of abortion and the availability of alternatives to abortion; (2) the attending physician must file detailed reports on abortions and the reports be made available to the public for copying, even though this could lead to public identification of the woman having the abortion; (3) that in post-viability abortions, the physician use the care …

Foreword: Health In The Workplace, Barbara Fick

Journal Articles

This article is a brief foreword to the 1987 Notre Dame Law Review Symposium Issue.

Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers

Journal Articles

In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany's highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the tension …

Amniocentesis, Coercion, And Privacy, Charles E. Rice

Journal Articles

The 1973 abortion decisions of the Supreme Court were based on a right of reproductive privacy which the Court in 1965 had discovered in certain elusive "penumbras formed by emanations from the Bill of Rights." This fictional right of privacy was used by the Court to declare unconstitutional virtually all state restrictions on abortion; according to the Court's rulings, the states have no effective power to prohibit abortion at any stage of pregnancy. Even in the third trimester, the state may not prohibit abortion where it is necessary "in appropriate medical judgment for the preservation of the life or health …

Fifty Questions On Abortion, Charles E. Rice

Books

No abstract provided.

Abortion And Constitution: United States And West Germany, Donald P. Kommers

Journal Articles

The US Supreme Court’s 1973 and the German Federal Constitutional Court’s 1975 decisions on abortion provide us with an uncommon opportunity to compare the constitutional law of different nations on the issue. The two courts took opposing stances in their decisions. The US Supreme Court substantially curtailed the power of American states to limit abortion while the German court ruled that an existing statute that permitted abortion within the first three months of pregnancy violated the rights of unborn children. These opinions can be explained by the different political contexts of the two nations and different perceptions on judicial intervention …

The Dred Scott Case Of The Twentieth Century, Charles E. Rice

Journal Articles

In the 1973 abortion cases, the Supreme Court quoted this language from an 1871 report of the Committee on Criminal Abortion of the American Medical Association. The Court, however, did not follow the advice. Instead, the seven man majority held that the child in the womb is not a "person" within the meaning of the fourteenth amendment, which provides, "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Court refused to call the child in …

Overruling Roe V. Wade: An Analysis Of The Proposed Constitutional Amendments, Charles E. Rice

Journal Articles

It is not my purpose here to criticize the abortion decisions in detail. Professor Robert M. Byrn has exposed the many specific errors and evasions found in the majority opinions in those cases. As Professor Byrn demonstrates, the Supreme Court's opinions in Wade and Bolton are an intellectual shambles. I will not try to cover the same detailed ground that Professor Byrn did. Rather, after examining the medical evidence which establishes that the unborn child is a human being from the moment of conception, this article will evaluate the propriety of excluding this class of human beings from the protections …

Equal Protection For The Child In The Womb, Charles E. Rice

Journal Articles

During 1971, the drive for liberalized abortion laws stalled after achieving rapid successes in the preceding four years. The law in most American states still allows abortion only where, it is necessary to save the life of the mother. Since 1967, however, sixteen states have relaxed their laws to provide that abortions may now be performed in varying situations where the life of the mother is not at stake. Some states, such as New York, allow abortions virtually on request. In other states, laws forbidding abortion have been declared unconstitutional by the courts. During 1971, no further liberalization was enacted …

Abortion And Legal Rationality, John M. Finnis

Journal Articles

This article concerns the legitimacy of various legal schemes for dealing with abortion. Legitimacy in one sense is secured simply by complying with the formal criteria for valid law-making: enactment within power and in due form. But jurists have learned (or re-learned) that more can be said about legitimacy, without betraying the purity of their discipline by moralizing and advocacy. From this development in jurisprudential thought emerges the range of questions and criteria deployed in the present study.

Note, Medical And Dental X-Rays--A Time For Re-Evaluation And State Action, James H. Seckinger

Journal Articles

In 1956, the National Academy of Sciences in a report on "The Biological Effects of Atomic Radiation" warned the public of the serious consequences that may flow from any type of radiation exposure. The report set forth the relationship between low-level exposure, that type of exposure which is present in the medical and dental use of X-rays, and long-range biological effects. Because of the possibility of such long-range effects, the Academy recommended that the medical authorities take prompt action to eliminate all unnecessary radiation in the use of X-rays.

Despite the strong language used by the Academy, and the lapse …

Abortion, The Law And Human Life, Thomas L. Shaffer

Journal Articles

The issue in abortion "reform" is whether existing criminal sanctions against doctors and pregnant women should be abolished or liberalized. From one point of view this is the question presented in any discussion of the criminal law—whether people should be put in jail for doing something. From another viewpoint, it is the question presented in any discussion of existing law—whether the reformers, who presumably have the burden of proof, have made a case. The controversy will be especially interesting to Indiana lawyers, who last winter saw an abortion-reform proposal pass both houses of the General Assembly and then die (abort?) …

A.I.D.- An Heir Of Controversy, Charles E. Rice

Journal Articles

What is this thing called artificial insemination? Is it a menace to society? Or is it a fantasy of little moment beyond the precincts of 1984 and the "Brave New World"? Or does the fact lie somewhere in between? Whatever your view, you can readily bolster your position by citing respectable authority. For example, a respected advocate declaims that, "Nothing in modem times has so seriously challenged the basic concept of our society founded as it is on the biological tripod of father, mother and child which we call the family unit." Oppositely, a competent man of medicine notes that, …