Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently refer to the Supreme Court as the great arbiter of American moral life, as performing a 'prophetic function,' as expressing what 'we stand for as a people. "' Its Justices are invoked as "moral teachers who help to shape the character of our nation." How could our most perplexing ethical issues not be confided to such an institution?
My first purpose in this chapter is to consider that question, to ask whether constitutional adjudication is a good way to make biomedical policy. My answer-in its briefest, bluntest form-is no. I believe biomedical policy is generally better made-is better informed, better structured, more responsive, wiser, and more legitimate-when it is made by the whole range of governmental agencies Oegislatures, administrative agencies, referenda, courts interpreting statutes and the common law), and semiofficial and nonofficial institutions and individuals (commissions like the New York Task Force on Life and the Law, professional associations like the American Association of Bioethicists and the American Medical Association, voluntary associations like churches, and individuals like scholars, doctors, patients, and families). These actors and agencies will not produce perfect law; they may not even produce good law. But they are likelier to do better than courts acting as interpreters of the Constitution.
Publication Information & Recommended Citation
Schneider, Carl E. "Making Biomedical Policy through Constitutional Adjudication: The Example of Physician-Assisted Suicide." In Law at the End of Life: The Supreme Court and Assisted Suicide, edited by C. E. Schneider, 164-217. Ann Arbor, Mich.: University of Michigan Press, 2000.