ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 86-89.

LAW AND BIOETHICS: AN INTRODUCTION by Jerry Menikoff. Washington, D.C.: Georgetown University Press, 2001. 512 pp. Cloth: $65.00. ISBN: 0-87840-838-X.

Reviewed by Michele Goodwin, College of Law, DePaul University.


At the intersection of law, ethics, politics, and medicine, dwells this ever-emerging field popularly known as bioethics. Over time, these various disciplines have linked to help us contextualize and better analyze whether and how the political process should influence or govern medical decisions and what the role of the law might be in enforcing such situations. At the core of this intersection are legal principles such as privacy and autonomy, balanced against notions of the collective community will, public interest and ethics. Over the years, these rights have become associated with questions that extend beyond the legal imagination and into our homes. Does a woman have a right to choose to terminate a pregnancy? Is there a right to die? And, who's the mother?

In his timely and well written, new book, LAW AND BIOETHICS: AN INTRODUCTION, Jerry Menikoff attempts to provide a clearer understanding of the law's engagement with bioethics. His book is not an attempt to answer questions that have challenged policy makers and bioethicists alike, over the past several decades. Rather, he introduces the audience to the cases behind the questions.

Menikoff' attempts to explain to his readers how the law relates to bioethics. He argues that "while some 'law and.' courses are convenient juxtapositions of unrelated legal doctrines that merely share a common subject matter, that is most assuredly not the case with law and bioethics" (p. 1). He describes law and bioethics as having both constitutional and non-constitutional aspects, which at their core embody certain consistent themes, rather than simply being two awkwardly connected disciplines. He also organizes the book's chapters to explore the political connections between abstract principles and ideas and the political process, which helps the ideas, evolve into law.

The political process is intricately linked not only to our understanding of privacy and autonomy, but also to those concepts being protected by law and recognized within the judicial process. However, as America's political process has been subject to the whims of majorities replaced in any given electoral year, so have the contours of the rights associated with privacy and autonomy been shaped and reshaped. Indeed, the extent to which one may claim a particular right connected with her autonomy or privacy is often dependent upon what state she lives in and who sits on the judicial bench. Although these inconsistencies are perhaps most
noticeable between states, controversy is certainly not averted through United States Supreme Court decisions which either proscribe certain behaviors or protect certain rights. Menikoff explains this well in connection with the marketplace (p. 356).

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The marketplace is central to Menikoff's discussion of autonomy and decision-making, in chapter twelve. He contrasts the free market of purchasing and trading stock with patient autonomy, arguing that as patients, "our autonomy is restricted in numerous ways." The author suggests that limits to patient autonomy are paternalistic by default, as it necessarily assumes an informed patient is incapable of wisely deciding the types of healthcare or treatments she desires. Although Menikoff might slightly overstate this point, he raises important issues about the need to balance patient desires and needs against financial and other concerns of HMOs and physicians.

Even as we explore the meanings of privacy and autonomy (or right and wrong), we understand their ubiquitous connection to many situations involving the law and medicine. Privacy and autonomy are broad concepts not easily defined even within the bioethics rubric. Although they are perhaps most easily understand on the very intimate and personal level: one's right to choose medical procedures or not and the authority to disclose or not when, how, and where one will accept a certain treatment, they are nonetheless subject to inconsistent definitions and social constructs. Bioethicists help to explain this dilemma.

Menikoff attempts to address autonomy, but more within a financial construct. However, autonomy is central to most discussions in bioethics. Although understood perhaps best as a philosophical concept rather than a legal principle, it is nevertheless central to the balancing of community needs versus individual rights. Autonomy is a core principle that is unavoidable in bioethics scholarship. Yet, it requires explanation and context. Menikoff raises important issues about autonomy in chapter twelve. His analysis on autonomy as applied to other legal issues, such as reproduction and technology would have enriched the text.

Although written in legal casebook style, the author assumes the reader to have little if any legal training in "law and bioethics." Although it appears that the intended audiences are students and professionals in medicine and public health, the author may have underestimated the extent to which his book will prove useful. In fact, the book may also prove helpful as a resource for bioethicists, lawyers needing a better understanding of landmark bioethics cases, and as course materials for law school seminars. The materials are well organized into six core areas and sixteen chapters, addressing the constitutional structure, reproduction, the physician-patient
relationship, organ transplantation, standards of care, and death. Given the broad cross-section potentially interested in his book, Menikoff includes an analysis along with each case presented in the materials, weighing political, moral, legal and even financial concerns of a particular era.

Bioethicists could be described as news anchors for the public, giving attention to issues and raising questions that inevitably effect public policy, but which otherwise the public might not be aware. Menikoff, for example, thoughtfully raises questions about ownership in the body, when interests in bodies might collide (i.e., a pregnant woman and her fetus), and even who should pay for care that may ultimately be futile. A challenge, nonetheless, among bioethicists is to think beyond the limited legal imagination and give expression to those issues requiring a spotlight.


Perhaps an understated goal of the book is to equip the reader with a core set of

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legal principles and ideas. In chapter two, the book introduces the reader to the concept of due process, presumably to assist in the reading and understanding of the edited cases. As might be expected in a casebook, the author provides a limited definition of the term, perhaps anticipating that the reader will derive his or her understanding of the term through a reading of the cases that follow. Although arguably there are benefits to this approach (as can be seen in other law casebooks), given the audience for this book (newcomers to the law), a broader, more detailed analysis of the contours of due process might have proven to be useful.

Menikoff, however, does not shy away from providing a broad account of how the law affects bioethics issues. He reaches beyond the traditional "right to die" cases, and gives the reader a more developed and sophisticated understanding of how concepts such as privacy and autonomy, and the law relate to society and medicine. To illustrate, by placing them in separate chapters, he distinguishes between sometimes-conflated notions such as the right to refuse care, which may ultimately lead to death, and the right to die. This distinction, as well as others, demonstrates Menikoff's attempt to have the reader understand the more subtle nuances in the law and how it relates to bioethics.

The book casts a broader net in some areas, while giving less attention to others. For example, significant attention is focused on reproduction, including cases related to the right to privacy, sterilization, abortion, and fetal protection, while only two chapters address issues of new technologies in bioethics. One plausible reason for this inconsistent treatment in the two areas is that for more than thirty years courts have interpreted laws related to women and birthing, while cloning, xenoplantation, and other modern bioethical dilemmas are part of a recent phenomenon and limited case law is available.

The author might have given added support to the materials, and most particularly the cases, by providing synopsizes of law review and other articles to shed insight on the future direction of bioethics. Not only is the future direction of bioethics important to a book with a sizable and diverse audience, but also past events that raise ethical questions. Although many of the nation's most ethically troubling cases wound their way to the Supreme Court of the United States (or even lower federal and state courts), others did not. Some of those cases or state-enforced policies that avoided judicial scrutiny equally disturb the intersection of law, medicine, and ethics. Take for example, the Tuskegee Experiments, which involved the study of syphilis, among illiterate black men in Alabama.

The Tuskegee experiments, which started in 1932, lasted long after the Nuremburg trials against Nazi war criminals, wherein medical standards and protocols were established under which doctors were to remember that their first "duty is to heal their patients" and that "human beings would not be used as research animals." To the horror of many Americans, especially African Americans, the study continued long after a cure for the potentially fatal disease was discovered, which would have, in any case, warranted the conclusion of the experiment.

Thus, a significant drawback of organizing materials in a traditional legal casebook style format is that it relies on the cases to educate us about particular unethical or illegal activity. However, significant social policy issues may not be

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addressed if a case were never filed. Although court cases often reconcile conflicts in the law, they often do not speak to areas in which a civil or criminal case has not been filed. This point is relevant to the extent that the book's audience should have a more complete view of American bioethics.

Menikoff gives little treatment to the issue of race and bioethics, which scholars such as Vanessa Gamble, Dorothy Roberts, Vernellia Randall, and Pilar Ossario suggest is significant, even critical to the discussion of law, medicine, and ethics. For example, the author discusses sterilization in the United States, and among the cases, the infamous BUCK v. BELL decision. That decision involved the forced sterilization of a young woman, Carrie Buck, under a Virginia statute, which permitted the compulsory sterilization of those considered "feeble." Justice Holmes upheld the law, ruling, "three generations of imbeciles is enough." However, the author does not draw upon other state statutes, which were equally pernicious and did over-time led to the sterilization of thousands of African American women. These issues may have been present in the original manuscript, but possibly edited out in an effort to maintain the book's manageability and limit its size.

Overall, Menikoff successfully weaves together a series of cases in each chapter, making them relevant to the audience. He takes great care in the editing of the cases, leaving in and analyzing that which is most relevant to the topic area of a given section of the text. He has chosen the cases included herein wisely, but could have expanded the text to include materials that address the typically understudied issues in bioethics, which include race, and socio-economics.

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Copyright 2002 by the author, Michele Goodwin.