Hard cases, they say, make bad law. Hard cases, we know, can also make revealing law. Hard cases identify the problems we have not found a way of solving. They reveal ways the law's goals conflict. They force us to articulate our assumptions and to examine our modes of discourse and reasoning. If there was ever a hard case for the law, it is the question of whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally or severely damaged physically to die. For many years, the law has not had to confront that hard case. Recently, however, the issue of neonatal euthanasia has provoked intense public debate and intensifying legal conflict. Legal battles over the fates of several "Baby Does" have brought the question vividly before the public. The Department of Health and Human Services has required states to incorporate neonatal euthanasia in their child-abuse statutes, and has conditioned funds on a requirement that states institute systems to respond to reports of newly born infants being denied medical treatment. The Supreme Court has, in Bowen v. American Hospital Associat tion, invalidated the latter regulation, primarily on the grounds that it exceeded the Department's authority under section 504 of the Rehabilitation Act of 1973. Public concern has in fact been building for some time. Voluntary adult euthanasia was widely debated only a few years ago and public (and legal) attitudes toward it have grown more accommodating. Roe v. Wade "dramatically changed the context of current debate about withholding treatment from anomalous newborns." Medical advances have multiplied questions about treating defective newborns. These developments have made it easier for doctors to acknowledge the extent of neonatal euthanasia, thus further intensifying public concern.
Schneider, Carl E. "Rights Discourse and Neonatal Euthanasia." Cal. L. Rev. 76, no. 1 (1988): 151-76.