Volume 24, Issue 4

Volume 24  Number 4                                                                                                     Summer 1997

SYMPOSIUM

VISIONS OF DEATH AND DYING:
INTERDISCIPLINARY PERSPECTIVES ON THE FUTURE OF MEDICAL ETHICS

Table of Contents

SYMPOSIUM ESSAY

Engineering Perfect Offspring: Devaluing Children and Childhood
By Wendy Anton Fitzgerald

In this Essay, Professor Fitzgerald observes that the law and practice governing medical treatment decisions for seriously ill and disabled newborn children requires physicians and parents to compare such children with an unstated norm. She discerns that our jurisprudence informs that unstated norm with an exclusive model of legal personhood, that of the autonomous individual, an independent and self-sufficient adult. Parents and physicians may conclude then, that a seriously ill or disabled newborn child who cannot eventually become an autonomous adult should not receive life-saving or life-prolonging treatment. Professor Fitzgerald suggests that this treatment paradigm parallels a cultural resurgence of genetic determinism, influencing parents and physicians to attempt medically to "engineer" children to meet that norm of eventual autonomous adulthood.

Professor Fitzgerald then discusses the experience of children who do not meet the norm, including conjoined twins. These cases demonstrate, she argues, that children who confound the norm, whose lives are defined instead by interdependence, represent different and valuable aspects of being human. She observes, moreover, that interdependence is the hallmark of childhood itself, whether particular children survive to autonomous adulthood or not. Professor Fitzgerald concludes, therefore, that casting human interdependence as a curable defect also casts the childhood of all children as only a surmountable defect standing between them and adult autonomy and results in the legal and cultural devaluing of all children.

SYMPOSIUM ARTICLES

By Seth F. Kreimer

In this Article, Professor Kreimer assesses the assisted suicide cases of last Term as contributions to constitutional jurisprudence. He suggests that the cases mark an end of a generation of discord over the legitimacy of substantive due process and a triumph of the proponents of extratextual fundamental rights. Nonetheless, he argues that Justice Rehnquist’s majority opinion cannot sustain its claim that an "established method" of substantive due process analysis rooted in history and tradition explains both the Court’s abortion cases and Glucksberg. So, too, while Justice Souter’s call for "arbitrariness review" rooted in the common law can account for the outcome in Glucksberg, it lacks mooring in the Constitution.

Professor Kreimer explicates the focus on physical suffering that informs the concurrences of Justices O’Connor, Breyer, and Ginsburg and maintains that focus is both constitutionally supportable and normatively informative. Finally, he advances the proposition that whatever their individual failings, the opinions in Glucksberg taken as a whole respectfully address the arguments on all sides of a tragic conflict and redeem the promise of Roe.

Two Precipices, One Chasm: The Economics of Physician-Assisted Suicide and Euthanasia
By Nelson Lund

In Washington v. Glucksberg and Vacco v. Quill, the Supreme Court refused to create a constitutional right to assisted suicide, but apparently left Congress and the states wide discretion to experiment with new legislation. For the moment, most jurisdictions seem inclined to preserve the traditional legal prohibitions against this practice. Deeper forces in our society, however, may soon push us toward accepting assisted suicide, and much harsher forms of hastened dying as well.

This Article presents two distinct but related arguments. Part I argues that legalizing assisted suicide, whether through judicial or legislative action, would be a mistake because the harms produced by such a step would likely outweigh the benefits. Part II suggests that the most important goals of the laws against assisted suicide may be threatened far more profoundly by seemingly unrelated developments in the practice and financing of medical care. The Article concludes by suggesting that the serious attention should be given to reforms that would reestablish a more direct economic relationship between patients and physicians.

The Supreme Court and Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia
By David Orentlicher

In its physician-assisted suicide cases, the United States Supreme Court ostensibly affirmed the distinction between "passive" and "active" steps to end a patient's life. The Court reiterated its recognition of a right to refuse life-sustaining treatment but rejected a right to physician-assisted suicide. However, Professor Orentlicher argues that, in responding to concerns about unrelieved suffering in some dying patients, the Court compromised the very distinction it was trying to preserve. The Court indicated that suffering patients can turn to "terminal sedation," a practice which often is effectively a "slow euthanasia." The Court not only blurred the distinction between active and passive patient deaths, it also undermined a key argument against legalizing assisted suicide. By implicitly concluding that terminal sedation can be employed by physicians without significant abuse, the Court undermined the objection to assisted suicide that its legalization would be followed by significant abuse. The result is a constitutional scheme that is ethically inferior to one that includes a right to assisted suicide. Terminal sedation serves fewer of the purposes of right-to-die law and poses greater risks to patient welfare than does assisted suicide.

ARTICLES

Does Decisional Law Grant Whites Fewer Political Rights Under the Fourteenth Amendment Than It Grants to Racial Minorities?: A Response to Vikram D. Amar and Evan H. Caminker
By Thomas E. Wood

In November 1996, the California electorate adopted Proposition 209 (Prop. 209), otherwise known as the California Civil Rights Initiative (CCRI), thereby eliminating all state and local programs that grant "preferential treatment" based on race, sex, color, ethnicity, and national origin in the operation of public employment, education, and contracting. Professors Vikram D. Amar and Evan H. Caminker have argued in this journal that lower courts, at least, must find CCRI unconstitutional under Washington v. Seattle School District No. 1. This Article is a response to their arguments regarding the constitutionality of CCRI.

This Article begins by noting two crucial differences between Prop. 209 and Initiative 350, the ballot measure at issue in Seattle. By analyzing the Seattle decision in the light of Reitman v. Mulkey and Hunter v. Erickson, this Article argues that the Amar-Caminker interpretation of Seattle is incorrect and that their interpretation was explicitly repudiated by the Seattle majority. Analysis of evidence against the Amar-Caminker interpretation reveals that their interpretation of Seattle leads to the unacceptable conclusion that decisional law grants whites fewer political rights under the Fourteenth Amendment than it grants to racial minorities.

The Hunter Doctrine and Proposition 209: A Reply to Thomas Wood
By Vikram David Amar and Evan H. Caminker

In this short reply to the article by Thomas Wood, Professors Amar and Caminker argue that Mr. Wood has seriously misread and misunderstood the Supreme Court cases most relevant to Proposition 209's constitutionality. Importantly, Mr. Wood has failed to account for specific and straightforward language in the cases that directly contradicts his reading. Moreover, Mr. Wood fails to interpret the language of each opinion in the context of the entire case -- and in the context of equal protection law generally -- as careful constitutional analysis requires. For these reasons, Professors Amar and Caminker continue to believe that if lower courts faithfully apply existing Supreme Court caselaw -- as they should whether or not the existing Supreme Court cases were rightly decided -- Proposition 209's constitutionality is dubious.

NOTE

Unauthorized Embryo Transfer at the University of California, Irvine Center for Reproductive Health
By Supriya Kakkar

Two couples, wanting desperately to conceive, go for help to the same fertility clinic. Both couples engage in the time consuming, painful, and emotionally excruciating procedure. Couple A fights the odds and walks away with their miracle baby. Couple B is not so lucky. They walk away empty handed. Years later, a horrifying truth is revealed. Without the consent or knowledge of either couple, doctors transferred Couple B’s embryos to Couple A. Couple A finds out that their miracle baby is genetically the offspring of Couple B. Now, Couple B is suing for custody. Who wins?

Doctors at the University of California, Irvine fertility clinic transferred embryos without the approval or knowledge of the genetic and gestational parents. This Note examines the shocking events that took place at Irvine to determine how the law should decide ownership in the resulting custody cases. Courts should consider the genetic ties as one factor under family law’s best interests doctrine to resolve a custody dispute regarding a child conceived through unauthorized embryo transfer. Given the inapplicability or inadequacy of constitutional law, contract law, and property law to handle such custody disputes, the best interests standard, in addition to the gestational mother presumption, will provide the best solution to such a difficult and sensitive issue.