Hard cases, they say, make bad law. But hard cases, we know, can also make revealing law. Hard cases identify for us problems we have not solved. They reveal how our goals conflict. They force us to articulate the assumptions implicit in our approach to a problem, and to identify and evaluate the ways of talking and reasoning the law has gradually come to use.
If there was ever a hard case for the law, it is the problem whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally and severely damaged physically to die. For many years, the law has not had to confront that hard case. Recently, however, the issue has evoked intense public and legal concern. The Department of Health and Human Services has, after receiving more than 115,000 comments on a proposed rule, issued final regulations requiring states to be ready to respond to reports of newly born infants being denied medical treatment, and the Supreme Court has agreed to hear a case arising out of a predecessor to those regulations.1 Legal battles over several "Baby Does" have dramatized the issue.
Carl E. Schneider,
Rights Discourse and Neonatal Euthanasia,
Law Quadrangle (formerly Law Quad Notes)
Available at: https://repository.law.umich.edu/lqnotes/vol30/iss2/7