Abstract
Legal disputes regarding issues ranging from stem cell research to implantable artificial hearts to assisted suicide and biobanking arise with increasing frequency. In the course of those disputes, bioethics resources appear in the forms of expert testimony, ethics committee determinations, the work of institutional review boards, and bioethicists’ research materials. Even Supreme Court justices have cited some of these resources.1 However, in a recent pretrial decision in a case to determine whether Merck, which manufactured the COX-2 inhibitor, Vioxx was liable for the death of a heart attack victim, a judge barred even the use of the words “ethics” and “morality.” The judge commented, “That’s not to say the trial isn’t about what’s wrong or right. That’s what the law is about.”2 Instead of a welcome guest, bioethics testimony had become persona non grata.
Vioxx: New Jersey Judge Bars Testimony on ‘Ethics’ ‘Morality.’ American Health Line. September 9, 2005. Available at LEXIS NEXIS.
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Endnotes
Cruzan, by her parents and co-guardians, Cruzan et ux. v. Director, Missouri Department of Health, et al., 497 U.S. 261 (1990). Irving Rust, et al., Petitioners v. Sullivan, Louis W., Secretary of Health and Human Services; New York, et al., Petitioners v. Louis W. Sullivan, Secretary of Health and Human Services, 500 U.S. 173 (1991). Bowen, Secretary of Health and Human Services v. American Hospital Association, et al., 476 U.S. 610 (1986). Chief Justice Rehnquist cited the Brief for Bioethics Professors in Washington, et al., Petitioners v. Harold Glucksberg, et al., 521 U.S. 702, 733 n. 23 (1997).
Legal reasoning is more constrained by dictates of history, precedent, and institutional concerns than is bioethics. See: Rao N. A backdoor to policy making: The use of philosophers by the Supreme Court. U Chicago L Rev 1998;65:1371–1401; Collier CW. The use and abuse of humanistic theory in law: Reexamining the assumptions of interdisciplinary legal scholarship. Duke L J 1991;41:191–272; Fallon RH Jr. Non-legal theory in judicial decisionmaking. Harv J L & Pub Pol’y 1994;17:87–99; Fiss OM. The death of law? Cornell L Rev 1986;72:1–16; Posner RA. The problems of jurisprudence. Cambridge, MA: Harvard University, 1990; Posner RA. Conceptions of legal “theory”: A response to Ronald Dworkin. Ariz St L J 1997;29:377–388. See also: Collier CW. The use and abuse of humanistic theory in law: Reexamining the assumptions of interdisciplinary legal scholarship. Duke L J 1991;41:191–272.
Luhmann N. Law as a Social System, Fatima Kastner, RN; David Schiff, editor, Klaus A. Ziegert, trans. Oxford Socio-Legal Studies. New York: Oxford University Press, 2004; Luhmann N. Law and social theory: Law as a social system. NW U L Rev Fall 1988/Winter 1989;83:136–150;Teubner G. Communicative rationalities in law, morality, and politics. Cardozo L Rev 1996;17:901–918; Teubner G. The global interplay of legal and social systems. Am J Comp L Winter 1997;45:149–169; Teubner G, Bremen F. Introduction to autopoietic law. In: Teubner G, ed. Autopoietic law: A new approach to law and society. Berlin; New York: Walter de Gruyter & Co., 1987:1–11 at 4; Teubner G. How the law thinks: Towards a constructivist epistemology of law. Law & Soc’y Rev 1989;23:727–757 at 739; Sand IJ. Changing forms of governance and the role of law-Society and its law, http://www.arena.uio.no/publications/working-papers2000/papers/wp00_14.htm (visited January 25, 2006).
The fifth edition of Tom L Beauchamp’s and James F. Childress’ classic Principles of Biomedical Ethics illustrates. It incorporated only two legal cases that had not appeared 7 years before in the 4th edition. Neither Washington v. Glucksberg nor Vacco v. Quill, two obviously important legal decisions, were included. These cases were not necessary to, and perhaps would have conflicted with, the authors’ purpose, which was to develop an account of bioethics. Beauchamp TL, Childress JF. Principles of biomedical ethics. 5th ed. New York, NY: Oxford University Press, 2001.
Jonsen AR, Jameton A. Medical ethics, history of: The Americas: Academic bioethics. In: Reich WT, ed. Encyclopedia of Bioethics: Revised Edition, vol. 3. New York: Simon & Schuster Macmillan, 1995:1626–1632.
Bloche G. Medical ethics in the courts. In Danis M, Clancy C, and Churchill L, eds. Ethical Dimensions of Health Policy. New York: Oxford University Press, 2002:133–156 at 149.
Scofield G. Post modernist government, MCW discussion list, Dec. 3 and 4, 1996.
First Amendment claims were raised explicitly in Rideout v. Hershey Medical Center, 30 Pa. D. & C. 4th 57 (1995), and In the Matter of Baby “K,” 832 F. Supp. 1022 (1993), which are discussed in Chapters 2, 6, and 7.
Jonsen AR, Toulmin SE. The abuse of casuistry: A history of moral reasoning. Berkeley: University of California Press, 1988:293–294.
Methods in medical ethics, Sugarman J, Sulmasy DP, eds. Washington, D.C.: Georgetown University Press, 2001 at 286.
Dorothy Biddison, James C. Biddison, etc., Plaintiffs, v. Facey Medical Group, Khosro Sadeghani, M.D., Northridge Hospital, Niles Chapman, M.D., Take Care Health Plan, and Does 1–100, Inclusive, Defendants, Case No. PC016239X. Deposition of John J. Paris, S.J., in Irvine, Cal. (June 17, 1998).
Dorothy Biddison, James C. Biddison, etc., Plaintiffs, v. Facey Medical Group, Khosro Sadeghani, M.D., Northridge Hospital, Niles Chapman, M.D., Take Care Health Plan, and Does 1–100, Inclusive, Defendants, Case No. PC016239X, deposition of John J. Paris, S.J., on June 17, 1998, p. 79 line 7 to p. 80 line 4.
Dorothy Biddison, James C. Biddison, etc., Plaintiffs, v. FaceyMedical Group, Khosro Sadeghani, M.D., Northridge Hospital, Niles Chapman, M.D., Take Care Health Plan, and Does 1–100, Inclusive, Defendants, Case No. PC016239X, deposition of John J. Paris on June 17, 1998, p. 81 line 19 to p. 82 line 2.
Dorothy Biddison, James C. Biddison, etc., Plaintiffs, v. Facey Medical Group, Khosro Sadeghani, M.D., Northridge Hospital, Niles Chapman, M.D., Take Care Health Plan, and Does 1–100, Inclusive, Defendants, Case No. PC016239X, deposition of John J. Paris on June 17, 1998, at p. 82 line 3 to page 82 line 7.
No “Hickford” study is reported in the literature. The expert may be referring to Hillman BJ, Joseph CA, Mabry MR, et al. Frequency and costs of diagnostic imaging in office practice-A comparison of self-referring and radiologist-referring physicians. N Eng J Med 1990;323:1604–1608.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
Tod Chambers observes that the ethics case story is bioethics’ key genre. That genre is not treated here as a bioethics communication because the bioethics case story per se does not interact with law. Chambers T. What to expect from an ethics case (and what it expects from you). In: Nelson HL, ed. Stories and their limits: Narrative approaches to bioethics. Routledge: New York and London, 1997:171–184.
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(2007). Introduction. In: Bioethics in Law. Humana Press. https://doi.org/10.1007/978-1-59745-295-3_1
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