The Judiciary

In theory, the judiciary provides the least ideal forum for the development of many health policies. Certainly, judges are thought to be impartial and able to assess evidence and arguments from a variety of sources objectively. However, many judges are insulated from public accountability. They are appointed by political figures, often for their political ideologies; they may have long-term or life appointments; and many are not subject to election or reappointment. Judges usually bring legal skills to the bench; they may lack experience with scientific or ethical thinking. They rarely receive education or training in health issues.⁷

More importantly, the adversarial nature of judicial proceedings militates against a prominent role for judges in health care policy formulation. The information that judges receive is often partial and incomplete; also, attorneys usually present narrow legal arguments that may not endorse the most desirable policy position. The legal system frequently assumes judges can produce a balanced, accurate decision after hearing two extremist versions of an issue. Yet, each version may be biased or unreliable. Courts lack the tools for assessing the validity of complex scientific or technological evidence and arguments. Courts rely on “expert” witnesses. However, expert witnesses are usually paid for their testimony; this presents a conflict of interest. Also, they may not be the most qualified in their fields, and they may offer opinions that the majority of their peers do not accept and/or that may not have been subjected to adequate scientific inquiry.

In Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court ruled for the first time on the place of scientific evidence in federal proceedings.⁸ The decision involved an appeal about whether the drug Bendectin caused birth defects. The Context and Process of Health Policymaking Essay. The federal district court and the court of appeals had dismissed the lawsuit, ruling that data concerning birth defects were inadmissible because they were not “generally accepted” in the scientific community.

The Supreme Court rejected the “general acceptance” standard that looked to the conclusions of the expert witness, and it took a broader view of the scientific process, with an emphasis on “methods and procedures.” The Court established judges as active gatekeepers charged with insuring that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” It asked judges to screen out ill-founded or speculative scientific theories. The Court held that judges should focus on the reasoning or methodology behind scientific testimony, rather than on whether the conclusions of an expert witness have won general acceptance in the scientific community. Speaking for the Court, Justice Blackmun said, “In order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method” and must have been tested or at least subject to testing. While publication in a peer reviewed journal was not essential, it was relevant.”⁹ In dissent, Chief Justice Rehnquist, joined by Justice Stevens, warned that the decision would require judges to become “amateur scientists.”

The Daubert case may well enable judges to assess expert testimony with somewhat greater reliability by reference to the scientific method. But, as Justice Blackmun stated, “There are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory.” These differences still place courts in a uniquely difficult position to assess health policy. Courts must frame their questions under the terms of a case or controversy and the applicable law. Courts do not adopt criteria to help them assess the benefits and harms of a health policy; they only resolve whether a policy is lawful. Also, courts rarely appoint neutral experts. Accordingly, even if they are able to filter out confounded scientific theories, they lack access to the objective expertise necessary for developing health policy. Courts could considerably enhance their ability to assess scientific questions if they systematically appointed neutral experts paid only by the state. Appointed experts could help the court perform a thorough, objective examination of the state of the science, which is essential for sound decision making.

Despite these numerous disadvantages courts have been instrumental in developing several important health policies. I will discuss three areas where courts have made major contributions to health policy-reproductive rights, the right to die, and mental health. The important role of the judiciary in the field of reproductive rights has been well discussed.¹⁰ Beginning with the seminal cases of Griswold v. Connecticut ¹¹ and, later, Roe v. Wade,¹² the courts for nearly two decades defended the reproductive rights of women. The Supreme Court found a constitutional right to “privacy” even though no mention of the concept appears in the Bill of Rights. The courts used the newly construed right to privacy to prevent the state from interfering with the sale and distribution of contraception.¹³ The Supreme Court explained that contraception concerns “the most intimate of human activities and relationships.”¹⁴

The Supreme Court stated that the constitutional promise of privacy protects not only the right to use contraception, but also the right to decide whether to carry a fetus to term.¹⁵ It defended a woman’s right to choose, and the privacy of her relationship with her physician, through the mid-1980s.¹⁶

In recent years, the changing composition of the Supreme Court has led to a significant erosion of reproductive rights and medical privacy.The Context and Process of Health Policymaking Essay.  The Court upheld the authority of the state to restrict the use of public employees and facilities for the performance of nontherapeutic abortions.¹⁷ The Court also upheld a Department of Health and Human Services regulation prohibiting federally funded family planning clinics from counseling or referring women for abortions.¹⁸ The DHHS regulation became known as the “gag rule” because it prohibited funded programs from providing women with objective clinical information about reproductive choices. In Planned Parenthood of Southeastern Pennsylvania v. Casey,¹⁹ the Supreme Court changed the legal standard by which to evaluate restrictions on abortion. This decision will have a profound effect on access to reproductive health care.²⁰ It will allow states to place restrictions on access, such as requirements that abortions be performed in hospitals that are not publicly funded; restrictions on the timing, such as waiting periods for abortions; and mandatory justification and information requirements, such as limiting the reasons women can use for an abortion and requiring the doctor to present state-approved information.²¹ This shift in the composition and decision of the Supreme Court vividly shows how changeable the courts can be in assessing health policy and defending human rights.²²

Many argue that the development of the right to privacy from 1965 through the early to mid-1980s had profound, positive effects on reproductive policy. Neither the legislative nor the executive branch produced similarly clear and consistent policies on contraception and abortion. Current efforts in Congress (e.g., the Freedom of Choice Act) and in state legislatures to protect reproductive privacy use the same “fundamental rights” analysis that the Supreme Court employed in Roe.²³ Courts also developed thoughtful rulings on surrogate motherhood ²⁴ and artificial reproduction that some state legislatures are emulating.²⁵

The judiciary has also displayed leadership in formulating policy around the right to withdraw life-sustaining treatment, beginning with the Karen Ann Quinlan decision of the NewJersey Supreme Court in 1976.²⁶ While the U.S. Supreme Court has rarely extended the right to privacy beyond reproductive decisions,²⁷ many state courts have interpreted the federal and state constitutions as conferring a right to refuse life-sustaining medical treatment.²⁸ The court in Bouvia held that a patient’s decision to forego medical treatment “is a moral and philosophical decision that, being a competent adult, is hers alone.”²⁹ The right to refuse medical intervention has been extended to persons who have become incapable of making a decision³⁰ and those who have always been incapable.³¹ The courts have almost uniformly respected the decisions of surrogates, particularly family members, in making choices for persons who could not decide for themselves.³²

The courts have defined the circumstances under which treatment could be terminated with greater specificity over the years. Most courts have rejected the distinction between withholding and withdrawing treatment, between ordinary and extraordinary treatments, and between terminally ill and nonterminal cases. The courts have protected the right to refuse treatment in cases involving ventilators and blood transfusions, as well as those involving nutrition and hydration.³³ Many courts have set out procedures and criteria for decision making ranging from second opinions, prognosis, and ethics committees³⁴ to ombudsmen.³⁵

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Despite the courts’ own insistence that legislatures would make these decisions better, the judiciary has formulated much of the policy surrounding termination of life-sustaining treatment. Only recently has the locus of policy begun to shift to federal and state legislatures. The Supreme Court’s decision in Cruzan provided an impetus for the move to legislative policymaking on the right to die.³⁶ In Cruzan, the U.S. Supreme Court upheld the decision of the Missouri Supreme Court to adopt a clear and convincing evidence standard for the termination of life-sustaining treatment. The Supreme Court never mentioned the word “privacy” in its decision. Instead, it found that competent patients had a “liberty interest” to refuse treatments. The Court did not view the individual’s liberty interest as “fundamental”; this suggested that the state interest in preserving life could prevail.

Legislatures began to conceive of ways in which the decisions of persons to refuse life-sustaining treatments could be more routinely respected. In her concurrence in Cruzan, Justice O’Connor gave some guidance by suggesting that the Court might in the future constitutionally protect the advance directives of patients. In 1990, Congress enacted the federal Patient Self-Determination Act, with an implementation date of December 1, 1991. The Act conditions health care providers’ receipt of Medicare or Medicaid dollars on their provision of written information at the time of admission about patients’ rights under state law to accept or refuse medical treatment and to formulate advance directives. Since Cruzan, state law on advance directives has increasingly been crafted by legislatures. The Context and Process of Health Policymaking Essay.