Legal Trends in Bioethics

Starting with the fall issue of The Journal of Clinical Ethics, my “Legal Trends in Bioethics” column will be available on the Cato website at time of publication instead of only several months later. That means the information provided will be more up-to-date and relevant for anyone interested in tracking legal issues in bioethics.

For those not familiar with the column, it tracks bioethics related issue through all stages of litigation, legislation, and regulation at both the federal and state levels, as well as occasionally mentioning exceptional legal developments in other countries. The topics covered are not always exactly the same, but usually there are sections on informed consent, abortion, children’s rights, vaccines, organ procurement, HIV, mental illness, medical privacy, unconventional treatment, right-to-die, stem-cell research and other new technologies, among other topics depending on what bioethics topics are of legal concern in the U.S.

The column tries to be comprehensive as far as reporting the most relevant developments at each level of government and in each topic area. It is a very useful tool for doing exactly what its name implies – tracking the “Legal Trends in Bioethics.” The following is the introduction to the fall column which will be published in The Journal Clinical Ethics and simultaneously become available on the Cato website next month:

The most troubling development in this quarter is the extent to which legislators continue to intervene in the patient/physician relationship by trying to regulate the relationship down to the smallest specifics of what is said and done. These developments are a great threat to both physician and patient autonomy, but while there have been many attempts to pass such invasive legislation, at this point, few of such bills have actually made it into law. It will be important to watch the next two issues of Legal Trends if someone is interested in seeing how many of such bills actually do end up as laws.

The issue of medical tourism is not new to bioethics, but it is on the brink of attracting more attention in U.S. courts and legislatures. There is no separate heading in “Legal Trends” for “medical tourism,” but it is important for anyone interested in the subject to regularly check the “Legal Trends’ subheading dealing with interesting developments in other countries. In this issue, for example, some Canadians are seeking a police investigation into an assisted suicide in Switzerland. Physician assisted suicide is legal in Switzerland, but illegal in Canada. At issue is whether Canadians have a legal right under Canadian law to travel to Switzerland to avail themselves of a practice that is illegal in their own country. In the United States there is a constitutional right to travel which would make it legal for the patient seeking physician assisted suicide to go to Switzerland (there is no case directly on point but the basic principle is well-established in U.S. constitutional jurisprudence), but even in the U.S., as in Canada, it may be possible to prosecute someone who assists that person in getting to Switzerland. This could be considered aiding and abetting a suicide. The Canadian suit has not even been filed yet, and no such case exists in the U.S., but it is an interesting issue to watch. It may come up as it did in Canada with respect to traveling to Switzerland where it is legal for physicians to assist foreigners in committing suicide (this is not true in the Netherlands); it is also likely to come up in connection with people suffering from kidney disease traveling to Iran, the only country where it is legal to purchase kidneys, and in other situations where the legality of the activity is not the issue but the price of medical treatment.

The “Legal Trends” from earlier this year are available on the Cato website or directly from The Journal of Clinical Ethics.