Book Review

Limits: The role of the law in bioethical decision making

N Engl J Med 1997; 337:431August 7, 1997

Article

Limits: The role of the law in bioethical decision making
(Medical Ethics Series.) By Roger B. Dworkin. 205 pp. Bloomington, Ind., Indiana University Press, 1996. $35. ISBN: 0-253-33075-0

Providers of medical care in the United States frequently regard the law with a mixture of suspicion and bewilderment. The suspicion is undoubtedly related, at least in part, to a fear of malpractice litigation that seems to influence physicians' behavior all too often. In contrast, the bewilderment derives from uncertainty about the nature of relations among medicine, law, and ethics. In Limits: The Role of the Law in Bioethical Decision Making, Roger Dworkin clarifies — and usually criticizes — the response of the legal system to several controversial areas in medicine and bioethics.

Dworkin, a professor of law at Indiana University School of Law, begins with a brief overview of four major processes in the American legal system: common-law adjudication, legislation, administrative lawmaking, and constitutional adjudication. Dworkin then addresses six biomedical topics — abortion, sterilization, alternative reproductive techniques, genetics, death and dying, and the control of research — that have already generated legal controversy or are likely to do so in the near future. For each area, he includes a historical perspective and a critical analysis of the legal response.

Dworkin's view, evident throughout the book, is that “less is more” when the law is asked to confront biomedical change. Indeed, he claims that “the soundest response to a social issue posed by biomedical advance is to begin by assuming that no legal response is necessary.” Dworkin believes that common-law adjudication, with resolution of disputes one case at a time, is usually preferable to legislation and constitutional adjudication. The latter processes, he argues, are overly broad solutions that often create unanticipated problems when applied to real cases. Naturally, he acknowledges that case-by-case common law does not provide certainty about how the next case will come out and does not yield uniform standards across the 50 states, but Dworkin's position is that the common law's flexibility is more often a strength than a weakness, at least in comparison with the alternatives.

Dworkin's discussions of death and dying and the termination of treatment serve to illustrate his general thesis. He takes the reader through two decades of Supreme Court rulings (e.g., from Quinlan through Cruzan), the federal Patient Self-Determination Act, and state legislation on living wills and durable powers of attorney. Dworkin suggests that there is little evidence that dying patients, considered in the aggregate, have benefited from this flurry of legal activity; indeed, recent empirical studies tend to support his view. But Dworkin is sometimes too nihilistic: Although medical care of terminally ill patients still leaves much to be desired, perhaps things would be worse in the absence of any legislation or constitutional adjudication in this area. For example, if the Supreme Court had never considered any of the cases on withdrawal of treatment, physicians today might be less confident — and thus more resistant — when patients or families ask that life-sustaining treatment be discontinued.

It is difficult to identify Dworkin's intended readership for this book; the only reference to an audience is a comment that the book is designed “to point would-be lawmakers in the right direction” when they deal with bio-ethics and public policy. Because the writing is concise and explanatory digressions are short, readers with exclusively medical or legal backgrounds may find the going rough from time to time. For example, the average physician may have some trouble getting through Dworkin's critique of the Roe v. Wade abortion case, which presumes more familiarity with concepts such as “substantive due process” and stare decisis reasoning than most medical readers are likely to have. On the other hand, lawyers may have difficulty with passages that presuppose a relatively sophisticated grasp of medical nuance. The book may be especially useful for teachers of bioethics who are looking for a critical analysis of the relation between American law and medicine.

Limits, then, is neither easy reading nor a comprehensive treatment of the role of the law in bioethics. But Dworkin's provocative arguments — sometimes one-sided, but often persuasive — will challenge readers who have come to accept the law's intrusion as a necessary response to biomedical advances.

Allan S. Brett, M.D.
University of South Carolina School of Medicine, Columbia, SC 29208