In the past several decades, the problems facing those of us who labor in the vineyards of health policy and ethics have been the problems of success — first medicine's and then, though to a lesser extent, our own. By this I mean that it has been the remarkable fruits of biomedicine, from research to health care delivery, that have produced the rich harvest of ethical, social and legal issues that have drawn our, and society's, attention.

In the basic science laboratory, scientists have developed means to splice pieces of DNA together, raising questions from workplace safety to the reengineering of homo sapiens. Of more immediate concern, tests for genetic susceptibility to disease in one's self and one's offspring have been developed, thereby generating questions about employment and insurance discrimination, selective abortion, and adverse impacts on self-identity and well-being.

Roe v. Wade is a landmark case for women and for reproductive rights. By permitting abortion, Roe v. Wade gives women some control over the timing of pregnancy and childrearing, and has reinforced the movement of women into the labor force. Nevertheless, it is a hotly contested decision. The most fervent critics decry its substantive position on fetal status, likening it to Dred Scott and Nazi atrocities. Others classify it as an arbitrary infliction of judicial will unfit to be called law.

Roe v. Wade, however, is not as radical a departure from the main currents of constitutional precedent as charged. Its premises about procreative choice stem from the Court's decisions in Griswold v. Connecticut and Eisenstadt v. Baird? Its evaluation of fetal status is not markedly different from common law positions. Nor has Roe v. Wade's recognition of procreative liberty greatly expanded the list of nonprocreative rights, as many persons had hoped or feared.

In the context of the bicentennial of the Constitution and science's relationship to society, it has been argued that “the advance of science and technology in the West has changed not only the relation of man to nature but of man to man.“ This seemingly immodest statement may soon prove an understatement. In the arena of human reproduction, the marriage of science and technology in medicine may change not only the relationship of man to nature and man to man, but more significantly, the very concept of what it means to be human. This, in turn, will directly affect how we define the “rights” this “new human” may properly claim.

This article begins to explore developing reproductive medical technology with a view toward examining the way it might change our concept of humanness, and how this change might be accommodated, encouraged, or truncated by the relationship between the government and its pregnant citizens as defined by the United States Constitution and the “right to privacy.”

For the past two decades, the medical profession and society have debated the definition of death. Some reasonable consensus has been reached on this issue, in theory and in practice. In the last few years, however, a far more important debate has been evolving — the definition of human personhood. Human personhood has been discussed extensively in the past with respect to the abortion question and other issues concerning the beginning of life. More recently, however, the definition of personhood has been raised with respect to termination of treatment decisions at the end of life and, in particular, on the appropriate care of patients in a persistent vegetative state.

Our major premise is that consciousness is the most critical moral, legal, and constitutional standard, not for human life itself, but for human personhood. There is nothing highly original in our approach to this particular issue; others have advanced similar arguments in recent years.

The American public firmly believes both in the rule of law and in the progressive and beneficial effects of science. Public opinion polls show that legal and scientific institutions continue to command wide respect, even in a period of diminished trust. According to a recent survey conducted by the Office of Technology Assessment (OTA), the Supreme Court and the scientific community each received higher confidence ratings than political institutions, the media, education, and even organized religion. Yet the impacts of science and the law can at times be profoundly antithetical, for the former acts as a force for social transformation, while the latter seeks to maintain the stability and continuity of societal institutions and norms of conduct. Vannevar Bush's famous metaphor “the endless frontier“ captured the sense of limitless aspiration associated with science and technology through much of this century.

I propose to survey briefly 16 of the Supreme Court's “Law and Psychiatry” decisions in the decade and a half from 1972 through 1986. I shall emphasize Justice Harry Blackmun's role in these decisions, his votes and his opinions.

Justice Blackmun's changing “social vision” on the court has been much discussed. It has even been examined quantitatively in a Harvard Law Review student note. This note measured his shift over time from voting with Burger and Rehnquist to voting with Brennan and Marshall. The lines of this graph cross in 1981, and 16 cases I have selected confirm this change. The 16 law and psychiatry cases are listed in Chart 1 below in chronological order. There were 8 cases before 1981 in which Justice Blackmun consistently voted with Burger and Rehnquist. There were 8 cases after 1981 in which Justice Blackmun consistently voted with Brennan and Marshall.

The American Society of Law and Medicine has chosen to honor Associate Justice Harry A. Blackmun of the United States Supreme Court with its first Presidents’ Award for Distinguished Contributions to the Fields of Law and Medicine. It is my task to explain why that honor is so richly deserved.

To me the answer is simple: as much as any other judge in our Nation's two hundred-year constitutional history, Harry Blackmun has shaped and defined our modern conception of the constitutional right to privacy, as well as our developing notions of the scope and limits of medical privacy. During his twenty-eight years on the federal bench and his seventeen years on the Supreme Court, Justice Blackmun has played a major role in rebalancing what I call “the medical triad” — the triangular relationship among the patient, the doctor and the state, with which this Society's members are so intimately familiar.

The age of empirical jurisprudence appears to be upon us. At both trial and appellate levels, empirical data are playing ever more prominent roles in civil and criminal adjudication. Expert witnesses were once confined to a narrow class of forensic scientists. Today psychologists, sociologists, statisticians, and other empirical researchers regularly testify in court. Lawyers aware of the value of using empirical argument hire expert witnesses to discuss and dispute vast bodies of data often generated precisely for the purpose of influencing legal decision-makers.

Courts are continually being asked to settle broad issues of social policy, many of which turn on empirical analyses of the effects of actual and proposed statutes, regulations, and judicially-generated rules. As a result, the use of data-oriented arguments continues to grow. Scholars are looking for change in the traditional structures for regulating the introduction of data into evidence, and have proposed innovative procedures that recognize the potential contributions of empirical results.

As Hippocrates said to one of his students: “Let your best means of treating people be your love for them, your interest in their affairs, your knowledge of their condition, and your recognized attentiveness to them.“ A physician who is guided by this teaching must be a very caring person. He or she must care deeply about people. To care, in this sense, means to be troubled about the troubles of others. He or she must also care about being a good doctor, about being competent in all relevant respects. I believe that all thoughtful people want such women and men as their personal doctors. We want our doctors to be caring persons, to be attentive to our needs and responsive to our concerns. When our doctors talk with us, we hope that they will speak to the unique individuals we each correctly believe ourselves to be.