Document Type

Article

Publication Date

5-2005

Abstract

The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal situations that normal rules do not anticipate and cannot handle. Schiavo is egregiously atypical. Persistent vegetative states are unusual. Few families fight so implacably and repellently. Courts— and even less legislatures, governors, and presidents—rarely encounter cases about withdrawing treatments. Decisions usually take days, not decades. Second, hard cases make bad law because hard cases force tragic choices—choices where walking toward one blessing means walking away from another. The interests of the Schiavos and the Schindlers were irreconcilable. Ms. Schiavo’s interests in living and dying clashed.

Comments

Reprinted with the permission of the Hastings Center Report and Wiley-Blackwell.

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