Academic journal article Harvard Journal of Law & Public Policy

Death, Ethics, and the State

Academic journal article Harvard Journal of Law & Public Policy

Death, Ethics, and the State

Article excerpt

[T]his case presents novel issues of fundamental importance that should not be resolved by mechanical reliance on legal doctrine.

--Superintendent v. Saikewicz(1)

The state has an interest in "maintaining the ethical integrity of the medical profession."(2) The U.S. Supreme Court recognized this proposition in its recent landmark "assisted suicide" decision, Washington v. Glucksberg.(3) Unfortunately, the Court did so in a way that could undermine the ethical integrity of the medical profession in this country, in cases ranging from the right to refuse treatment to assisted suicide, abortion, and the death penalty.

As discussed in this Article, the interest in the ethical integrity of the medical profession (EIMP for short) has been widely recognized by courts. These courts typically have done so in difficult cases at the margins of medical practice, where the powerful themes of death, ethics, and the powers of the state intersect. EIMP is a reasonable goal, and most citizens would probably agree that there is a state interest in ensuring that doctors maintain high standards of ethical conduct. Stated in that form (as what I will call the Societal Goal), EIMP is vitally important, and this Article discusses ways in which our courts and society at large can take steps to ensure it. But is this what the courts mean by EIMP? And how are states and courts supposed to maintain EIMP? Surprisingly, there are no clear answers to these questions; none of the dozens of jurisdictions that have asserted a state interest in EIMP have ever really explained what EIMP means or what would protect it.

What makes this ironic is that, as a result, EIMP--in the sense defined in the last paragraph--has not been maintained but rather has been threatened by these court decisions, regardless of their outcome. Instead of explaining what EIMP means, courts simply have cited earlier cases asserting a state interest in EIMP. The cited cases themselves do the same thing. The trail ultimately leads back to the landmark right-to-die case of Superintendent of Belchertown State School v. Saikewicz. However, the court in that case (whose self-conscious judicial activism was quoted above) simply made EIMP up out of whole cloth.

And so it goes. Judges make things up and their successors cite them blindly, even in cases involving the most serious matters of life and death. With EIMP, this combination of improvisation and mimicry has the effect of twisting courts' words until they achieve the opposite of what they say. The result--degrading doctors' standards of ethical conduct--is very dangerous indeed. This Article is an attempt to shine a light on this line of case law, and to suggest new and more effective ways to ensure that we as a society maintain high standards of medical ethics.


The story of EIMP begins in 1977 with Superintendent v. Saikewicz,(4) the Massachusetts `right to refuse treatment' case that introduced EIMP as part of a state-interest calculus. Despite the Massachusetts Supreme Judicial Court's warning, quoted above, against "mechanical reliance on legal doctrine," many courts facing treatment-refusal and other life-and-death issues have blindly adopted the Saikewicz state-interest formula, including EIMP. Eventually, EIMP's path led to the Supreme Court in Glucksberg.

This Article has three themes. I first examine the origins, application, and consequences of the EIMP standard. Ironically, I contend, the articulation of a state interest in maintaining the "ethical integrity of the medical profession" has served to undermine the medical profession's ethical integrity.(5)

The second theme of this Article, subtler but just as important, is the tendency of courts to `mechanically rely on legal doctrine' rather than carefully scrutinize sources and their applicability.(6) As this Article traces the spread of EIMP into other jurisdictions as well as into other areas of law, the background of the analysis reveals how a single act of judicial activism (or judicial creativity, depending on one's point of view) can mushroom, distorting (or informing) an entire area of case law for decades. …

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