In its amendments to the Child Abuse Prevention and Treatment Act, Congress set forth a strict standard for treatment of impaired infants. The statute, shaped by right-to-life groups and certain medical organizations, calls for aggressive treatment in virtually all cases, regardless of the degree of suffering imposed and the burdens and risks involved. The federal rule evidences deep distrust of parental decisionmaking, relegating most parents to a nonparticipatory bystander role.

Congress did not make its rule binding on the states. Rather, it conditioned the receipt of federal funds upon incorporation of the rule into each state's law. Most states have accepted the condition, largely through rulemaking by state child abuse agencies.

This article challenges the authority of state administrators to promulgate these rules, and argues that state constitutions, little mentioned in the Baby Doe debate thus far, may prohibit many states from adopting the federal standard. Ordering medical interventions that perpetuate extreme conditions of physical and mental devastation, subjecting infants to grave suffering for uncertain benefits, and depriving parents of virtually all decisionmaking power violates the norm of governments constitutionally committed to individual liberty, human dignity and family autonomy. A constitutionally sound approach to this issue would permit careful, ethical deliberation, attention to the individual circumstances of each infant Doe and a reasonable degree of parental control.

Some sources condemn judicial decisions which authorize the withdrawal of artificial nutrition from permanently unconscious patients. These critics assert that withdrawal of nutrition from a preservable unconscious patient amounts to intentional killing of a helpless human being. Grave implications are seen for helpless patients.

This article confronts these critics and their assertions. The author contends that the judicial approach which allows withdrawal of artificial nutrition is fully consistent with traditional medico-legal doctrines. The article articulates a standard — respect for human dignity — which justifies withdrawal of artificial nutrition from a permanently unconscious patient. The implications of this formula for other imcompetent patients facing a protracted dying process is discussed. Finally, the article explains why active euthanasia can and ought to be distinguished from withdrawal of life-preserving medical intervention.

An emerging legal and ethical controversy in the health care industry centers on physician investment in health care facilities to which they make patient referrals. This Article analyzes the policy debate surrounding these physician self referral arrangements as well as the various responses to such arrangements. The Article asserts that an effective legal or ethical response to self referral arrangements must acknowledge and balance both the possible pro-competitive effects of such arrangements and the inherent potential for abuses in this type of business practice. From this perspective, the most effective form of regulation consists of extensive structural guidelines which focus on the physician's referral behavior and limit restrictions on investment procedures. Such an approach would minimize referral abuses and conflict of interest concerns but promote business and competitive freedom.

With the opening of the new Supreme Court term and three new cases, each with the potential of eroding or overruling Roe v. Wade, discussions of Webster v. Reproductive Health Services, the most anticipated case of the 1989 term, are seemingly out of fashion. But Webster is significant and noteworthy as the first case of this decade which directly presented the high Court an opportunity to overrule Roe, the 1973 landmark case which afforded women the right to make intimate decisions about abortion free of governmental interference. The Court, flooded with amici curiae on both sides of the issue and an avalanche of political activism unparalleled in this decade, left Roe intact, albeit slightly modified. Because there are no longer five solid votes on the Court to uphold Roe, Webster has left its mark on American politics and has radically changed the tenor of the abortion debate for years to come.

In the case of Institut Pasteur v. United States, the Institut Pasteur (Pasteur) claimed that the National Cancer Institute (NCI) had breached express and implied contracts to share research on AIDS virus samples provided to NCI by Pasteur. NCI scientists allegedly used the samples to acquire information which allowed NCI to file patent applications for an AIDS blood test kit.

The United States Claims Court dismissed the complaint by holding that the Institut Pasteur had not complied with certain administrative procedures required by the Contract Disputes Act before bringing its suit. The United States Court of Appeals for the Federal Circuit reversed the decision of the Claims Court by holding that the disputed contracts did not fit within the scope of the Contract Disputes Act.

Soon after the Court of Appeals decision, President Reagan and Prime, Minister Chirac announced a settlement agreement whereby the lawsuit was to be dropped, American and French scientists were to share credit for having discovered the AIDS virus, and both parties to the suit were to share the patent rights for the AIDS blood test kit. This settlement suggests that international legal disputes involving urgent scientific and medical matters may require dispute resolution techniques that serve as alternatives to national courts.

Most-favored-nations clauses appear in health insurance contracts allegedly to prevent price discrimination by health care providers among competing insurers. In fact, use of these provisions often works to exclude competitors from the health insurance market. This Note examines the antitrust implications of most-favored-nations clauses as used in the health insurance industry.

The availability of patents for genetically altered animals raises questions about the patentability of human beings. Genetic research will produce beings who fall halfway between what we currently think of as “animal” and “human.” It is unclear on which side of the legal line these creatures will fall. In April 1988, Congress revised the Patent Act with a statement that human beings are not to be considered patentable subject matter. Congress, however, failed to supply a definition of the term “human being.” A definition will clarify the legal status of sub-human creatures. The author addresses this problem and proposes a definition of “human being” as an amendment to the Patent Act.

Amicus is an ad hoc group of 57 philosophers, theologians, attorneys and physicians … who teach medical ethics to medical students and physicians. The members believe that permitting competent adults to make important, personal medical decisions in consultation with their physician is a fundamental principle of medical ethics, and that the doctor-patient relationship deserves the constitutional protection the Court has afforded it under the right of privacy.

This Note examines how both the law and the health care profession neglect women's needs for abortion counseling before, during and after an abortion. Part I analyzes the health care profession's view of counseling, the psychological effects of abortion and how counseling both positively and negatively influences those effects. Part II reviews Supreme Court cases and state law regarding abortion counseling, critizing both the Court's narrow view of counseling and the states’ failure to use the legislative process to create laws which benefit maternal health. Part III recommends an expanded role for abortion counseling, in which the counselor can provide emotional support from before the day of an abortion until a woman emotionally recovers from an abortion. This expanded role would be state-mandated, but would remain within constitutional boundaries by providing flexibility for counselors to give individual treatment while respecting a woman's privacy.

The National Abortion Rights Action League (NARAL) and the Women's Legal Defense Fund (WLDF) co-authored an amicus curiae brief submitted to the United States Supreme Court in Webster v. Reproductive Health Services. The brief was authored on behalf of seventyseven organizations committed to women's equality. The brief argued that continued constitutional protection of a woman's fundamental right to choose abortion is guaranteed by the liberty-based right to privacy. Further, we argued that this right is essential to women's ability to achieve sexual equality. In order to participate in society as equals, women must be afforded the opportunity to make decisions concerning childbearing. Women's unique reproductive capabilities have long served as a principal justification for their unequal and disadvantageous treatment by the state. Restrictive abortion laws continue “our Nation['s] … long and unfortunate history of sex discrimination” by depriving women of the freedom to control the course of their lives.

The interest of the eight major organizations of health care professionals was not in debating the philosophical, ethical, moral or religious issues surrounding abortion. The members of the organizations differ on how to balance the woman's privacy right against the state's interests in maternal and fetal health, and in particular about whether the state has a compelling interest in fetal health before viability. Given the diversity of views, the brief neither endorsed nor opposed the Supreme Court's holding in Roe v. Wade that the state's interest in fetal health becomes compelling at viability.

The Missouri statute at issue in Webster v. Reproductive Health Services, contained three related prohibitions on speech about abortion. The statute: (1) prohibited public employees from encouraging or counseling a woman to have an abortion except where necessary to save her life; (2) banned such counseling in a public facility; and (3) prohibited the expenditure of public funds for such a purpose in any context. In essence, Missouri's statute attempted to censor the speech of physicians and counselors, even where an abortion would be medically indicated though not necessary to save the woman's life. The statutory scheme thus invades the doctor-patient relationship, jeopardizes free speech and access to medical information, and seeks to manipulate and mislead women who are considering the appropriate course of action for their unwanted pregnancies.

The mission of this brief was not only to oppose the outright over-ruling of Roe v. Wade. It was further to resist any weakening of the protective doctrine surrounding Roe's central holding that would allow states to eviscerate the right that Roe recognized. Because the brief was written on behalf of nearly 900 law professors, we consulted widely among our constituency, drawing heavily on the scholarship developed since Roe. We relied on extensive work by our colleagues supporting Roe's holding, reasoning and legitimate place in constitutional jurisprudence.