Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1986

Abstract

Part I of this article will attempt to identify some of the basic legal issues in the debate over the rights of the disabled and aged to minimal health care and nourishment. Part II will argue that the practice of defining the rights of the person functionally, rather than as a matter of principle, is an old one which had largely been eliminated after the adoption of the Fourteenth Amendment, but that it is now resurgent in some quarters as a means to an end which would be impossible were the definition to be based on an explicit principle of equality. In the context of bioethics, this debate has come to be known as the dispute between the "sanctity-of-life" ethic and the "quality of- life" ethic, and Part II will examine its importance in the context of constitutional law.

Part III will argue that the process of case-by-case analysis is, by its nature, a slope, and that without the anchor of a clear agreement over ethical principles governing the equality of human persons, the law will progress in linear fashion to the ultimate realization of the principles upon which it is based. It will contend that ambiguity in the law governing courts and surrogates creates an unfettered discretion which is inconsistent with basic constitutional protections, and that stare decisis will hamper thoughtful attempts to force reconsideration of prior decisions which are alleged to be erroneous and subversive of the rights of individuals.

The article will conclude by rejecting both the functional definition of the human person, and the primary role of courts (and of the ethicists upon which they rely for assistance) in what I consider to be the case-by-case erosion of fundamental human rights principles.)

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