Kennedy Institute of Ethics Journal

Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior to initiating human gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.

A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.

A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.

A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.

The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.

All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.

In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.

Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as...