The Elderly and Health Care Rationing

[Excerpt] “The allocation of health care resources involves a societal determination of what resources should be devoted to a particular program. The allocation process is typically performed on a ―macro‖ level, with allocation decisions often affecting only statistical lives. In contrast to the identifiable lives often affected by health care rationing, statistical lives affected by allocation decisions are much more readily sacrificed. A common means of deciding health care allocation is through political processes. Government decisions pertaining to health care spending and regulation typically involve allocation determinations. For example, the Medicare and Medicaid programs allocate resources for numerous purposes. Hospitals, too, regularly make allocation decisions in determining the quantity and type of resources to have available. Their actions, in turn, impact directly upon physicians who subsequently also become health care allocators.

The Development of the Right of Assembly - A Current Socio-Legal Investigation

It will be the purpose of this article to assay the historical evolution of the freedom of assembly, noting first its development in England and later in America and finally its current position in the twentieth century. Even though the rights of free speech, association, and religion are inescapably drawn into case discussions of freedom of assembly, effort will be made to confine the consideration to the pertinent assembly problems. In addition to considering the fundamental legal propositions embodied in this right, as well as its raison d\u27etre, thought and discussion will be given to the sociological interpretations of the basic need for its recognition. But, before any of this may be undertaken, an attempt to define in more exacting philosophical terms what is meant by the word, Freedom, must be made

The Environment and the Judiciary: A Need for Co-operation or Reform?

In Section 9 of the Federal Water Pollution Control Act Amendments, Congress authorized a study of the feasibility of establishing an environmental court which would have exclusive jurisdiction over environmental matters. This mandate was devoid of any hint as to the shape and functions of the proposed court, and made no attempt to define the contours of an environmental issue . An examination of the legislative history of the Act is no more helpful in illuminating the Congressional intent. The study was carried out by the Land and Natural Resources Division of the Justice Department which, because of the absence of concrete guidelines and of a definition of an environmental issue in the statute, was given the responsibility for transforming the broad, abstract mandate into concrete form. Unfortunately, the study itself, although it does present guidelines for the court, never defines an environmental issue; and the lack of such a definition remains a central problem in understanding and analyzing the findings of the report. The remainder of this article will deal with the results of that study, summarizing the methods employed as well as the specific findings. Since the study does not recommend a separate environmental court as a solution, an alternative approach aimed at sharpening the contours of environmental law through education of the judiciary will be discussed briefly. It is not the aim of this article to present a full-blown conceptual alternative to the idea of an environmental court, but rather to suggest further areas for consideration

Intrusions of a Parvenu: Science, Religion, and the New Biology

Both religion and the law must seriously consider artificial insemination so that dogma and laws are formed to incorporate the process. Science has brought the procedure to a society unequipped to deal with the religious and legal implications of birth through artificial insemination in any of its forms. Not all religions or jurisdictions can be expected to treat the process exactly alike, but there must be an effort on the part of each organization to react to the situation facing them so that their citizens will have some guidance. Section II of this article illuminates the path science is on and the possible ultimate result. Section III explores the interaction between the worlds of science and religion. Section IV presents the current religious reactions of Catholic, Protestant and Jewish hierarchies to the steps science has already taken. This article concludes that religion must provide a belief relating to the widening use of artificial insemination so that the law may codify that belief and present some direction for man seeking to ensure his survival

“Dignity in Living and in Dying”: The Henry H. H. Remak Memorial Lecture

Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation in today\u27s post secular society are, however, subject to wide discussion and debate; for the term, human dignity, and its preservation, defies universal agreement. Yet, its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from recognizing and protecting the civil rights of the citizen members of the LGBTQ community throughout the nation to the care of the disabled and to the dying. In clinical medicine, safeguarding the dignity of the patient is a core responsibility of all physicians to respect patient autonomy and to act with beneficence in health care decisions. Similarly, in protecting the civil rights of free association for all Americans--without reference to gender or sexual lifestyle preferences--contemporary society must accord non-judgmental respect for the actions of its members so long as that conduct is neither harmful nor illegal. Foundational instruments such as The Universal Declaration of Human Rights; The International Covenant on Economic, Social and Cultural Rights; and The Covenant on Civil and Political Rights all codify a mandate to ensure human dignity within various contexts of international conduct. The notion itself is stated normally in grandiloquent terminology without more, and always subject to progressive realization rather than absolute recognition. Ongoing international efforts must continue to be taken to guide the actions of states in seeking to set and to maintain levels of cultural and social conduct, which serve to safeguard human dignity throughout life and especially at its end-stage. Within the United States, five states and the District of Columbia legislatively, and one, judicially, moved toward recognition of a right to die with dignity (when confronted with a diagnosis and a prognosis of medical futility is commendable); for, such actions validate the very essence of autonomy and self-determination, which are correctly viewed as the bulwark of the social order of American society

Dr. Bonham’s Case and the Modern Significance of Lord Coke’s Influence

Dr. Bonham’s Case, decided by Edward Coke as Chief Justice of the British Court of Common Pleas in 1610, remains, to this day, the case acknowledging the supremacy of the fundamental (or natural) law interpreted and enforced as such by the judiciary and not a legislative body - here, Parliament. Coke’s idea of a law of nature superior to man-made law was not new. What was original, and even radical for the times, was the notion that the courts of law should be given the power and the right to interpret and enforce that law. This theory of judicial review was embraced first in the Massachusetts Colony in the case of Giddings v. Brown in 1657 and in subsequent challenges by the colonies to the supremacy of Parliamentary rule over them. Subsequently, Coke’s holding in Bonham’s Case became the very lynchpin for the American theory of the judicial review of legislation

Judicial Decision-Making in the Age of Biotechnology

The major premise, minor premise, and conclusion of this Article are one and the same - for, they conduce to an acceptance of the fact that the social constructs and legal tools necessary for the modern judiciary to meet head-on and deal with the contentious issues of bioethics and biotechnology are already in place. To resolve problems arising from these potential quagmires, perhaps the major concern is for the courts to remain forever vigilant to the interlinking relationships or synergistic forces found in law, science, ethics, and medicine. Without vigilance and enhanced awareness of the dynamic and fluid situation here, both the bench and the bar will increasingly lack understanding of the questions to be asked, let alone the answers to be given in this New Age of Science. What is called for is a modified form of judicial activism - not grounded in the heresy of deconstruction - but rather one shaped by reason, understanding, and contemporary social policy and one that is calibrated by the scientific gatekeeping role of the federal courts. When, owing to exigencies of time, laws become largely impotent or even moribund, and new ones are not enacted because of the legislator\u27s lethargic passivity, ignorance, or failure to release themselves from the vortex of emotionalism which enmeshes certain issues, then it remains for the courts to seize the initiative and fill the void of indecisiveness. Through interpretative policies guided by reason, common sense, equity, and analogy, the courts can chart with confidence a new common law of biotechnology - one that begins to build a framework for principled decisionmaking upon which stability and predictability can be assured. Absent this legal mechanism or process of decisionmaking, it remains for science to direct the future course of development for the new Age of Biotechnology and law to remain a reactive force. Ideally, however, a full partnership of interest and action should be sought by law, science, ethics, and medicine if progress is to be achieved over the succeeding years