Judicial Responsibility to Decide Bioethics Cases
Thaddeus Mason Pope
Mitchell Hamline School of Law; Australian Health Law Research Center, QUT; Saint Georges University; Alden March Bioethics Institute
Journal of Bioethical Inquiry, Vol. 10, No. 4 (2013 Forthcoming)
Bioethical questions within the law, especially those concerning life-saving treatment, often require quick decisions. But litigation is notoriously slow and cumbersome. Such disputes are often moot by the time they reach an appellate court — one that can issue a decision of precedential value — because a decision by the court can have no practical legal effect on the controversy.
While courts normally dismiss moot cases, there are some important exceptions. Most notably, appellate courts have adjudicated moot bioethics cases in two main situations: (1) when the issues are of public importance and (2) when the issues are capable of repetition yet evading review.
But, increasingly, appellate courts are abdicating their responsibility to decide moot cases satisfying these exceptions. This is problematic. The lack of recent legislative movement on divisive and emotional bioethical issues such as medical futility and mature minors suggests that they are “too hot” for the political branch of government. If the courts also fail to provide direction, then we are left with a policy vacuum.
Using two recent U.S. decisions, I argued that appellate courts have a judicial and social responsibility to decide bioethics cases that satisfy a recognized exception to mootness.
Number of Pages in PDF File: 4
Keywords: bioethics, bioethical, life-saving, dispute, precedential value, appellate court, moot cases, medical futility, mature minors, Roe v. Wade, Sheila W., aplastic anemia, controversy, judicial, judge, Gableman, Betancounrt v. Trinitas Hospital, emotional
JEL Classification: H51, I00, I10, I18, K32, K13, K41
Date posted: September 28, 2013
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