U.S. Supreme Court leaves medical issues to states
■ In its latest session, the high court showed it may be withdrawing its heavy hand from medical judgment.
By Amy Lynn Sorrel — Posted Aug. 7, 2006
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With two new conservative justices shifting the fulcrum of the bench, physicians and legal experts say the U.S. Supreme Court has shown signs of taking a less interventionist tack in medical decision-making, leaving individual states to govern often divisive subjects such as abortion, mental illness and physician-assisted suicide.
The docket in the 2005-06 term, which ended in June, was loaded with a number of cases that galvanized the medical community on issues addressing the scope of medical judgment in patient care. And court watchers anticipate that the trend may continue with similar hot-button topics already on the docket for the next session, set to begin in October.
The federal ban on so-called "partial-birth" abortion is already on the docket, and experts see issues such as stem cell research and lethal injection winding their way up to the Supreme Court level.
"The big question facing the court [in these cases] is the extent to which our legal system will defer to medical judgment," said Arthur B. LaFrance, a law professor at Lewis and Clark College in Oregon.
He pointed to Gonzales v. Oregon, in which justices in January upheld Oregon's law allowing doctors to prescribe controlled substances to terminally ill patients who wish to end their lives. The court ruled that the U.S. attorney general does not have the authority to ban that use of such drugs.
The court did not go so far as to explore whether doctors and patients have the right to engage in assisted suicide, explained LaFrance, who co-authored an amicus brief in the case defending Oregon's law. But justices suggested that "there is space for states to legislate differently."
Similarly, in Clark v. Arizona, a case taking on the insanity defense, justices in June upheld Arizona's law that allows a medical expert to testify whether an individual is mentally ill but not the person's capacity to determine right from wrong. The law lets a jury decide the latter.
"In broad terms, this court, and possibly for the future, is adopting a hands-off approach to most of medical decision-making and saying let medicine be practiced according to the standards in that state," said Curtis Harris, MD, an endocrinologist and a lawyer who chairs the medical liability committee for the Christian Medical and Dental Assns.
Abortion next big medical issue
For many doctors and legal advocates, it is the abortion debate ahead that likely will reveal which direction the court is headed since John G. Roberts Jr. was appointed to replace William H. Rehnquist as chief justice and Samuel A. Alito Jr. was appointed to replace Sandra Day O'Connor.
Next term, the high court is scheduled to hear two cases challenging the federal Partial-Birth Abortion Ban Act of 2003.
"On that front, the change that matters is Alito for O'Connor," said Gregg Bloche, MD, a law professor at Georgetown University in Washington, D.C. Justice Anthony M. Kennedy could play a more pivotal role moving in to the "swing vote" spot once occupied by O'Connor, he said. But "early signs are that the other substitution is neutral with Roberts," who indicated that he would push for more unanimous or narrow decisions.
The Supreme Court last considered intact dilation and extraction in 2000, when O'Connor cast the deciding vote in a 5-4 decision to strike down a Nebraska law because it lacked a health exception. In January, she penned the ruling in the first abortion case heard since then, Ayotte v. Planned Parenthood. The court unanimously declined to rule New Hampshire's parental consent law unconstitutional and instead sent it back to the state because it lacked an exception to protect young women from health emergencies that are not life-threatening.
Some doctors praised the decision for protecting their medical judgment in dire situations. But Wendy Chavkin, MD, MPH, chair of Physicians for Reproductive Choice and Health, said she now worries that the new court may not uphold that standard, paving the way for a challenge to Roe v. Wade, the landmark 1973 decision legalizing abortion. Such dramatic changes in abortion law, she added, could spill over into other areas of medical practice.
"Even though these things are seen very visibly in the particularly contentious area of abortion, it is threatening to the autonomy of the medical profession for legislatures or courts to tell them what to do and insert themselves into medical decisions," said Dr. Chavkin, a professor in the School of Public Health and ob-gyn department at Columbia University in New York.
While some issues might be turned over to the states, she said, "there are certain principles we look to the federal government to defend," such as the rights of physicians and patients to make a private medical decision.
On the other hand, according to CMDA's Dr. Harris, the court's penchant for state's rights "may bode poorly" for upholding Congress' ban on "partial-birth abortion" procedures, a ban CMDA supports. It might indicate that the high court again will turn the issue over to individual states, he said.
In addition to the abortion debate, medical community and health law experts are preparing for other factious medical issues they see making their way up to the high court in the near future.
"Stem cell research will get there," said LaFrance, underscoring President George W. Bush's July 19 veto of the Stem Cell Research Enhancement Act of 2005, which would have expanded federal funding for human embryonic stem cell research. The next big question, LaFrance, said, might be "whether [the government] can ban pharmaceutical companies, hospitals or universities from doing research on their own."
The Supreme Court's activity in the 2005-06 term on capital punishment also could open the door to legal challenges to lethal injections as cruel and unusual punishment, Dr. Bloche said.
"Some states are already saying they are not going to allow lethal injection to proceed unless a physician is involved," he said.
AMA policy states that a physician's opinion on capital punishment is a personal moral choice. However, it also says doctors should not be participants in executions and that requiring doctors to participate violates their obligation to protect lives.
"The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine," AMA President William G. Plested III, MD, said in a statement.