Life and Death Decision-Making: Judges v. Legislators as Sources of Law in Bioethics

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the Nineteenth Century predecessor courts that had developed law to respond to technological developments such as the railroad, telegraph, and telephone, felt required to decide each case brought before them. Unlike legislatures, they could do so without binding themselves to sweeping rules that would govern all cases in the future. Their decisions drew upon precedent and created precedent, but their opinions left room to accommodate future cases whose facts might suggest that the principles employed should be extended, retracted, or otherwise modified. Unlike legislatures, they were not subject to direct political control nor could they justify their decisions simply as an expression of majority will. Rather, they carried the burden of writing opinions that justified the retroactive application of the legal principles announced in each case. Their opinions were subjected to critical reading by lawyers, scholars, students, the press, the general public, and by judges required to write later opinions in later cases. The result is an example of the common law dialectic process celebrated by Lord Coke when he claimed that the law of England was “by many succession of ages . . . fined and refined by an infinite number of grave and learned men.” Some of the principles employed in early cases such as Quinlan have been abandoned. Others have been built upon. The process continues