ORGAN DONATION

2 types
o Live
Governed by state law
Look out for jurisdiction here
Incompetent Donor
Strunk v. Strunk
Incompetent but had a relationship with the person
needing the organ
Family member
It was in their best interest
Piscinski
Can't interact with the world
Won't get any benefit
Can't make decisions for themselves
What is in the best interest of the person = not to donate
Competent
Always refuse to donate
Mcfall v. Shimp
Pennsylvania State Case
Refused to donate
Same across jurisdictions
o Cadaveric - dead
A brain death standard in most standards
Changes in medical technology pushing the law (moving
away the heart/lung standard)
It can look like they are alive, but are brain death
Some states still use heart/lung standard
NJ for example
2 Potential Systems
Opt-In
Opt-Out
Soft - relatives of the next of kin have more control
In the US we have Soft opt-in system
Once the person is dead, they had to have some
point have agreed to donating organs
Still need to get consent from the next of kin (soft
system)
Organ Procurement Officers
Try to persuade the family that yes in fact they
wanted to be an organ donor
If someone has said they don't want to donate, there is no
question. Relatives have no control
How do you get Organs
Need to convince
 Forced Choice Laws
You have to choose yes you are going to donate or no you
are not
o Experiments with the Corneas
States coming up with clever ways to get more organs
State v. Powell
It's ok to take corneas without next of kin not?
Brotherton
This program is ok, but you still need to have a procedure
in place that if the next of kin objects, they have a meaningful
ability to do so
o Uniform Anatomical Gift Act
coroners are not allowed to take corneas without getting consent
o Allocation of Organs
Who gets the organs?
UNOS
Grading System
Who is going to benefit most from this procedure
Likelihood of success, urgency, time on the waiting list,
locality
Lists are by region
It doesn't control who gets put on the list
Steve Jobs was able to get on a bunch of different lists
(liver)
Clinics determine who goes on the list
Place where you can manipulate the system
o Not allowed to sell Organs
Iran has a market for kidneys
You can sell blood (usually donated)
Sell eggs and sperm

REPRODUCTIVE RIGHTS

Substantive Due Process

o 5th and 14th amendment
o You shall not be deprived of life, liberty, or property without due
process of law
o There are certain fundamental rights that are so important that no law
can ever infringe on these rights
o Is the state interest compelling enough to infringe on this right
o If the government has a compelling state interest, they can infringe
But has to be specifically tailored to the right
Right to Privacy
o Specifically in the context to reproductive rights
o Griswold
 Right to privacy in decisions made between a patient and
their doctor, with regard to reproductive planning and family
planning
o Eisenstadt
Expanded it to unmarried people
o Roe v. Wade
Because of right to privacy, that includes decisions about having
an abortion
No fundamental right to abortion, but to privacy
The court identifies 2 compelling state interests
Health of the Mother
Potentiality of Life
Up until viability, state can't ban abortion
Once you get to viability, you can regulate up to the point of
banning EXCEPT in cases concerning the health of the mother
Identified viability at the start of the 3rd trimester
o Casey
New definition of viability
Once there is a real possibility that the fetus can survive outside
the womb
Up to litigation
Around 22 weeks
Creates an undue burden standard
You can regulate how abortion is administered (before
viability also), but it cannot place a substantial obstacle for the
women seeking the abortion
Notification of Father and Parental Consent were
undue burdens
Previability
Undue burden- if so, unconstitutional
If not, does it have an exception for the life of the mother
o Because these are constitutional questions, they'll be litigated in
Federal courts

END OF LIFE CARE

The right to die

The right to refuse life-sustaining care
o You have the constitutionally protected right to deny this care
Right to physician assisted suicide
o Have your doctor that will kill you now, rather than a painful death
There is a right to refuse life-sustaining care (Cruzan)
But there is no constitutionally protected right to physician assisted
suicide (Glucksberg
o Up to the states
There is a right to refuse life-sustaining care
o Incompetent cases
 o The constitutionally protected right is for competent patients
o Think as if they were competent
Quinlan - Right to do so
o This is a corollary to the informed consent laws
o You can also say no to life-sustaining care
o This isn't the same as suicide (doesn't conflict)
o Right to privacy
As in Roe,
o Doesn't conflict with medical ethics
Seikowicz
o Incompetent - Mental disability
o Court adapts the Quinlan reasoning, look at what they would
have done if they were competent
o State interests
Interest to preserve life
Preventing Suicide
Ethical integrity of the medical profession
Preventing harm to 3rd parties
Conroy hierarchy
o If a person is competent- do what they say.
o Incompetent
Look at written directive (living will)
If they explain what they want, follow that
Appointed a Proxy
Someone makes decisions for you
Do whatever they say
Substituted Judgement
Court tries to determine what the person would
have wanted
This is where Cruzan comes in
Cruzan substituted judgment - 14th amendment right
o Missouri
o Woman in Car accident
o You need to prove with evidence that is what the person wants
o Must be the same as the substituted judgement
o It's up to the states to determine level of evidence they need
Life Sustaining Treatment
o Competent - yes - do what they want
o Competent - no - written directive? - if yes, follow it
o If no written directive - is there a proxy? If yes do what they say
o If no proxy - Substituted judgement - look at evidence (religious belief,
conversations)
o How much evidence is determined by the states
o If no evidence - best interests of the patients

Physician Assisted Suicide

o Not hooked up to life sustaining care, but terminally ill
o Want to die now, rather than later
o Picked up steam in the 20 years
o Oregon Death with Dignity Act
Make sure the patient really wants to do this
Doctors have no obligation to do this if not comfortable
o Washington
Laws that prohibited assisted suicide, Make it a crime
Glucksberg
Rationale basis test
o Glucksberg constitutional right: denied; historically turned down:
state ban is constitutional but assisted suicide is not illegal
Wanted constitutional Right to assisted suicide
Just as in Cruzan, this is also a private decision between
doctor (due process)
Court rejects this - not a fundamental right
Actually we've always had laws against suicide, so this
isn't rooted in history and tradition
Don't have to use strict scrutiny, because not a
fundamental right
Just look at if there is a rational basis
Even though they reject this idea, the court in
Glucksberg doesn't make assisted suicide illegal
They are saying states like Oregon are fine
Constitution is not going to weigh in the idea of
assisted suicide
o Vacco v. Quill New York Law -> active vs passive ->
Right to assisted suicide through equal protection clause
Both people want to die, but you are saying people on a
feeding tube can die but those who aren't can't
Court rejects this, they aren't the same