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Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation in today's post secular society are, however, subject to wide discussion and debate; for the term, human dignity, and its preservation, defies universal agreement. Yet, its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from recognizing and protecting the civil rights of the citizen members of the LGBTQ community throughout the nation to the care of the disabled and to the dying. In clinical medicine, safeguarding the dignity of the patient is a core responsibility of all physicians to respect patient autonomy and to act with beneficence in health care decisions. Similarly, in protecting the civil rights of free association for all Americans--without reference to gender or sexual lifestyle preferences--contemporary society must accord non-judgmental respect for the actions of its members so long as that conduct is neither harmful nor illegal. Foundational instruments such as The Universal Declaration of Human Rights; The International Covenant on Economic, Social and Cultural Rights; and The Covenant on Civil and Political Rights all codify a mandate to ensure human dignity within various contexts of international conduct. The notion itself is stated normally in grandiloquent terminology without more, and always subject to progressive realization rather than absolute recognition. Ongoing international efforts must continue to be taken to guide the actions of states in seeking to set and to maintain levels of cultural and social conduct, which serve to safeguard human dignity throughout life and especially at its end-stage. Within the United States, five states and the District of Columbia legislatively, and one, judicially, moved toward recognition of a right to die with dignity (when confronted with a diagnosis and a prognosis of medical futility is commendable); for, such actions validate the very essence of autonomy and self-determination, which are correctly viewed as the bulwark of the social order of American society.

Dignity is seen, commonly, as an ethical obligation owed to human persons. The dimensions of this obligation are subject to wide discussion and defy universal agreement. Dignity is seen, commonly, as an ethical obligation owed to human persons. Dignity as a Human Right? examines dignity within the prism of death, and more particularly, its humane and dignified management. Although there is no domestic or international right to die with dignity, within the right to life should, arguably, be a right to dignity and self-determination especially at its end-stage; for, a powerful interface exists between the right to human dignity and the very right to life, to love and humanity as well as compassion at its conclusion. Legislative efforts--nationally and internationally--have begun to recognize a right to die with dignity when a condition of medical futility exists. There are presently five states and the District of Columbia, together with a judicial interpretation from the Montana Supreme Court, which recognize death assistance for the terminally ill. Internationally, Canada, Belgium, the Netherlands, and Switzerland are seen as leaders in this recognition. The United Nations has played a significant role in framing end-of-life decision making within the ambit of human rights protection. The UN Charter states unequivocally that the dignity and worth of the human person must be protected and safeguarded. Similarly, among other instruments, the Universal Declaration on Human Rights acknowledges that all human beings are born free and equal in dignity and rights. ; https://scholarship.law.edu/fac_books/1130/thumbnail.jpg

Political ideologies and evolving notions of social justice have shaped public health policies throughout American history in a quest to find a point of balance between the collective good and economic realities. In pursuit of this balance, Congress enacted the Affordable Care Act in 2010. This Article first examines the new law through the lens of the social contract as envisioned by Rousseau and adopted by the Framers of the Constitution. Using economic data, public opinion, and information from the medical community, Smith and Gallena proceed to offer a frank appraisal of the state of health care in America and the future implications of the Act. The Article then examines the structure, power, and mandate of the Independent Payment Advisory Board (IPAB). Created by the Affordable Care Act, the IPAB simultaneously concentrates legislative authority in an autonomous executive agency, while shielding its actions from judicial review. Smith and Gallena argue that the IPAB undermines the fundamental principle of the separation of powers, poses an inevitable threat to current and future Medicare beneficiaries, and may ultimately destabilize the state of healthcare in the United States. Finally, Smith and Gallena propose a model for allocating health care resources that comports with both the philosophical underpinnings of the social contract and social justice.

George P. Smith's Palliative Care and End-of-Life Decisions completes a Bioethics-Health Care epistemology begun in 1989, which addresses the specific issue of managing palliative care at the end-stage of life. Smith argues forcefully that in order to palliate the whole person (encompassing physical and psychological states), an ethic of adjusted care requires recognition of a fundamental right to avoid cruel and unusual suffering from terminal illness. Specifically, this book urges wider consideration and use of terminal sedation as efficacious medical care and as a reasonable procedure in order to safeguard a 'right' to a dignified death. The principle of medical futility is seen as a proper construct for implementing this process. The state legislative responses of California, Vermont, and Washington in enacting Death with Dignity legislation - allowing those with end-stage terminal illness to receive pharmacological assistance in ending their own lives - is held by Smith to be not only commendable, but the proper response for enlightened state action. ; https://scholarship.law.edu/fac_books/1020/thumbnail.jpg

End-of-life decision making by health care providers must respect individual patient values. Indeed, these values must always be viewed as the baseline for developing and pursuing patient-centered palliative care for those with terminal illness. Co-ordinate with this fundamental bioethics principle is that of beneficence or, in other words, respect for conduct which benefits the dying patient by alleviating end-stage suffering — be it physical or existential. Compassion, charity, agape and/or just common sense, should be a part of setting normative standards and of legislative and judicial responses to the task of managing death. Aided by the principles of medical futility, palliative care protocols, greater acceptance of a patient's right to refuse treatment, and a spirit of basic humaneness, an ethic of adjusted care that seeks to secure dignity during the dying process without unreasonable interference by the state should be validated.

This article discusses the utilitarian principle of triage in the context of governmental response to national disasters, while analyzing the delicate balance between individual liberties and the government actions necessary to promote the common good. The author examines competing conceptions of the common good, and posits that a new philosophy is required for public health emergencies in order to promote balanced and normative standards of conduct necessary for consensus-based decision-making in times of national emergency. The author then demonstrates that the principal of medical triage is a valid construct for the distribution of scarce resources during national emergencies, tests this construct by applying it to model legislative proposals, and finds that distributive justice can be achieved during national emergencies by incorporating the triage principle into federal policy-making instruments and state legislative proposals.

This Monograph derives from a Lecture, under the same title, given in Sydney, Australia, honoring Michael D. Kirby, AC, CMG, Justice of The High Court of Australia. The first part of the Monograph analyses the significant contributions that Justice Kirby has made as a compassionate champion of human rights and acknowledges what is styled as the Kirby Ethic which, in turn, is seen as the foundation for the body of work of the Justice as well as the moving force in his private life as well. Building upon a theory of transcendent idealism which interprets God's purpose as safeguarding the dignity and promoting the salvation of each human soul, the Kirby Ethic embraces eloquently the principle of Love as set forth in St. Paul's Letter to the Corinthians. This, then, becomes not only the cornerstone of the Ethic, itself, but also the yardstick by which the effectiveness of any discourse or implementation of human rights is measured. Without its recognition and acceptance, any coordinate effort to advance the values of honesty, compassion, justice, human goodness and dignity - together with the nobility of life's purpose and the need for tolerance of diversity would be unattainable. The impact of the Kirby Ethic, in a very real way, is tied to an acceptance of moral and ethical values and principles rooted in religion. It is an Ethic of necessity tied, as well, to interdisciplinary approaches to shaping and testing normative values codified in law. The Monograph proceeds to test the extent to which religion impacts, clarifies and shapes the medico-legal deliberative process. Specifically, the Monograph focuses on a comparative (jurisdictional) analysis of the extent to which law, religion, and medical science interact when biomedical conflicts arise. The conclusion drawn is that all three disciplines are, indeed, compatible and not antagonistic this, because both biomedicine and religion respond to the enigma of human suffering. The law, then, serves as a construct through the passage of wise and humane legislation, fair administrative policy making and judicial interpretations designed to assure both distributive and corrective justice in the delivery of health care resources and in the advancement of medical science. This, in turn, promotes an efficient delivery of health care and, thus, combats human suffering as well.

The debate over when, and to what extent, the government may regulate public smoking, is a contentious one of great moment. The point at which the line will be drawn with regard to an individual's right to smoke in public is narrowing. This right may stop at public restaurants and the workplace; or it may reach as far as public stadia, outdoor gathering spots and public streets. In 2006, one report showed 461 municipalities in thirty-three states and the District of Columbia, had adopted one-hundred percent smoke-free coverage in restaurants, bars or workplaces; and 135 municipalities had one-hundred percent coverage in all three of these areas. Environmental tobacco smoke (ETS), or second-hand smoke, has been shown to be carcinogenic, yet the streets of the major metropolitan areas bring countless olfactory assaults to the sense of the average pedestrian forced to use them and the sidewalks. Put simply, the sidewalks - as public spaces - must be free from becoming carcinogenic incubators for the citizenry. This Article analyzes efforts undertaken by the global community and The European Union and the World Health Organization, as well as the United States federal government, state governments (notably California) and various municipal responses through the enactment of ordinances, together with model ordinances formulated by the American Medical Association and the Non Smokers Rights, which address the issue - and, to some extent - resolve the limits to which the governments may go in order to maintain the health of the public in both public and restricted environments. Robert C. Ellickson's effort to divide urban public land spaces within cities into zones and, thus, regulate levels of conduct (e.g., smoking and panhandling) is evaluated and found to be a creative response which should be used as positive step for including smoking as a chronic public nuisance tolerated, as such, more suitably only in one's home. Rather than explore the complex issues of Constitutional Law underpinning the "right to smoke," this Article takes a Property/Tort Law approach to problem-solving. The conclusion is reached that - on balance - common law principles of Public Nuisance, strengthened by the Doctrine of Anticipatory Nuisance, serve as an important tool, in conjunction with municipal regulations, to assure and maintain smoke-free environments and thereby protect the Public Health.

Scientific issues become - inevitably - political issues because of one principal fact: they put in focus the extent to which the government can restrict private medical research undertakings - either in the name of generational safety, morality or the public good. The multiple and varied concerns of applying the New Medicine, derived as such from the New Biology, conduce - essentially - to a suspicion continued reductionism in the biological analysis of humans will erode the notions of autonomy, dignity and personal integrity that have traditionally justified the constitutional protection of civil liberties. Driven by painful technologies and sciences, the new medicine runs the risk of being seen as no longer patient based. The ideal of philosophical reasoning and meanings for such ethical terms as responsibility, rights, duties, interests, beneficence and justice is mired often in confusion and conjecture. Indeed, many of the ethical questions raised from the development and practice of the new medicine are set within a blurred outline. Perhaps all that can be hoped for is that the Cartesian aspiration of reaching a clear and distinct idea be pursued with objectivity. And, from this may well come acceptance of an informed and educated societal obligation not to achieve all the good that can be achieved, but - rather - to effect all the good that can be done within the limits morality imposes upon the development and use of the technologies of the new medicine.

Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks - foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization. Although advanced - and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics - attainment of such a universal right to health remains at best dubious. The central impediment to the recognition of such a right is determining the extent to which a sustained level of economic stability must be chartered before a state can be seen as either recognizing or enforcing a right to health of any kind and at any level of magnitude. Indeed, under the ICESCR, realization of economic social and cultural rights is to be effected only under a standard of progressivity. In other words, so long a states move "progressively" toward the realization of these rights, no actionable violations will be sustained. This, then, results in a flawed enforcement mechanism which allows any state signatory to this foundational covenant to pace enforcement of the rights under the ICESCR according to national standards of political will and differing levels of economic development and sustainability. Economic self-interest - not transnational principles and lofty aspirational goals - will determine ultimately, the extent to which health care protections are recognized as a integral part of social, cultural, political, or human rights.

Faith, religion, spirituality, and prayer have a current focused outreach and easy parlance in the market places and public squares of the nation. News stories and court cases abound with dramatic challenges to the placement of monuments to the Ten Commandments in public buildings and grounds, the use of God's name in school pledges of allegiance, the teaching of Darwinian or evolutionary science in public education, the role of faith and religion in health care healing, and even the value of affirmations of religious faith on the political hustings. The purpose of this article is to explore the conjunctive and disjunctive influences that religion has in one specific field of current sociopolitical debate; namely, biomedical technology and ethical decision making. More specifically, the role of religion as an equal or - as the case may prove to be - limited partner with law and medical science in assessing the dimensions and patterns of application of new biotechnologies. Central to this inquiry will be a consideration of the legitimacy of, in the first instance, evolutionary science and its acceptance in public education, for it is this science from which the whole study of genetics and eugenics arises and which in turn directs and validates the very framework for the new biomedicine. From this analysis it will be seen that, far from being antagonistic to law and medicine, religion and religious principles can stabilize the field of biomedicine and serve additionally as vectors in shaping both ethical and moral constructs for decision making. In turn, each of these three disciplines complements and strengthens what should be the ultimate goal of the state: to secure the happiness, spiritual tranquility, and well-being of its citizens. This purpose is, in turn, advanced and enhanced by safeguarding the genetic well-being and general health of its citizens. Working toward this goal will have the effect of minimizing human suffering and maximizing the social good that derives from the rational and humane actions taken to displace man's genetic weaknesses from the line of inheritance.

The law of nuisance has long been seen as the heart of real property law - this because of its distributive and re-distributive force in land use. In its present form, while often ad hoc in application, a nuisance is defined generally as merely some interference with the use and enjoyment of the land. The most common remedy to abate a nuisance is injunctive relief in equity. Yet, judicial creativity has been seen through the use of such remedies as awards of permanent damages and the compensated injunction. The doctrine of anticipatory nuisance is brought into focus usually when a moving party is seeking to prevent commencement of what is alleged will become a nuisance. While recognized in both state and federal common law for many years, it is under-utilized because of the high burden of proof (e.g., reasonable certainty or high probability) normally set legislatively or through judicial interpretation and practice. Currently, only two states - Alabama and Georgia - have statutory enactments which allow for injunctive relief to restrain actions before they become nuisances. In order to re-validate the doctrine of anticipatory nuisance and contemporize its inherent value to modern lawmaking - and particularly to environmental management - the thesis of this Article is simple and direct: namely, that by greater judicial care and insight in applying the traditional balancing test to include a weighing of both the probability and the magnitude of an injury, equitably nuanced and practical decisionmaking will occur. Similarly, with legislative foresight, efforts should be made to define and clarify with greater specificity what evidentiary proofs must be submitted in order to establish, for example, a reasonable certainty of harm necessary to trigger injunctive relief.

Religion is a dominant force in the lives of many Americans. It animates, challenges, directs and shapes, as well, the legal, political, and scientific agendas of the new Age of Biotechnology. In a very real way, religion, biomedical technology and law are - epistemologically - different. Yet, they are equal vectors of force in defining reality and approaching an understanding of it. Indeed, all three share a synergetic relationship, for they seek to understand and improve the human condition. This book strikes a rich balance between thorough analysis (in the body), anchored in sound references to religion, law and medical scientific analysis, and a strong scholarly direction in the end notes. It presents new insights into the decision-making processes of the new Age of Biotechnology and shows how religion, law and medical science interact in shaping, directing and informing the political processes. This volume will be of interest to both scholars and practitioners in the fields of religion and theology, philosophy, ethics, (family) law, science, medicine, political science and public policy, and gender studies. It will serve as a reference source and can be used in graduate and undergraduate courses in law, medicine and religion. ; https://scholarship.law.edu/fac_books/1030/thumbnail.jpg

This Article examines the provisions of The Omnibus Budget Reconciliation Act of 1987 (OBRA '87) surveying the case law as such that deals with the rights of patients in mental institutions to refuse psychotropic medication. The article focuses first on an analysis of the different substantive and procedural rights afforded to patients under state common law, state constitutions and the federal Constitution. It then proceeds to evaluate the impact of OBRA '87 on the rights of long-term care patients who refuse medication and choose to accept minimal administrative hearings instead of pursuing full judicial proceedings designed to protect those rights. Finally, this article evaluates the Long-Term Care Ombudsman Amendments to the Older American Act of 1965 and concludes that - unlike OBRA '87 - the amendments neither articulate a right of treatment refusal nor provide a cause of action to establish such a right. Thus, the effect of the amendments is only discernible with respect to state decisions that have implemented provisions under the Act as a condition for the receipt of federal funding. OBRA '87, on the other hand, enumerates specific rights for nursing home residents but leaves to the states the task of selecting those residents to whom they apply. Consequently, the applicability of OBRA '87 to a specific resident refusing treatment is contingent upon whether the individual has been deemed competent under pertinent state law. The conclusion of the article is that more legislative fine-tuning must be undertaken if the elderly in America are to be guaranteed protection of their dwindling bundle of rights. At best, present federal and state reforms are not only imbalanced but erratic. Even with civil monetary penalties, violations by nursing homes continue. Current OBRA '87 regulations are deficient in that they do not provide any civil remedies to residents for non-compliance. Decisive action must be taken to codify, and thereby validate, the medication refusal rights of nursing home patients.

This article examines the rights of patients, particularly incompetent patients, in longterm care facilities to refuse psychotropic medication. In exploring this topic, the author focuses on the provisions of the Omnibus Budget Reconciliation Act of 1987 which was part of a Congressional solution to afford greater protection to residents of long-term care facilities. Because the legislation has not lived up to expectations, the author advocates for further legislative action to protect the dwindling bundle of rights of the elderly.