Debates about how much it costs to treat persons with AIDS and how the burden of these costs is and ought to be distributed raise fundamental questions about social policy in the United States. The most important questions concern entitlement: Who has what obligations to provide what services to whom, under what conditions and at whose expense?

As a result of our political history, we were unprepared for the challenge of AIDS to social policy in the 1980s. We had, over a half-century, linked entitlement to medical care to age, disability, employment, and, for people with end-stage renal disease, to diagnosis. Our policies proved inadequate to pay for medical care for persons who died at considerably younger ages than normal, who were disabled for a brief period that was still long enough to end their employability, and whose condition progressed with unusual rapidity from diagnosis to death. By early 1988, it was clear that we would, as a society, assume the substantial costs of caring for persons with AIDS. Who would pay, and how equitably we would provide care, remained in debate.

Nine years after the appearance of the world's first “test tube baby,” the public is being deluged with technical and ethical opinions about non-coital reproduction. U.S. legislators, policymakers, and lawyers, energized by the court battle about “Baby M,” are reconsidering the rights of would-be parents and of the children created by the new technologies. But in the course of this turmoil one salient fact has been ignored: social policy and technological advances in respect to reproduction are mediated for the individual woman through her interaction with her doctor.

Doctors have gotten by with remarkably little scrutiny in this regard. The perception of them as benevolent magicians has, indeed, been enhanced. The only criticism has come from religious leaders concerned with the experimental use of fetal or reproductive materials, and from those who see the doctor-scientist “playing God.”

A single article, unless of extraordinary length, cannot provide all the information bylaws draftsmen should have. And of course, practically all hospitals desire to secure or to maintain accreditation by the Joint Commission on Accreditation of Healthcare Organizations (Joint Commission). To do so they must conform, in large measure at least, to its prescriptions for review of decisions regarding medical staff appointments and clinical privileges. The net effect of bylaws that specify procedural rights for applicants and staff members is that except for a few jurisdictions, the court will require hospital action on medical staff matters to be in substantial accord with by law requirements, even if as a matter of law the court would not require that such procedural rights be provided by a private hospital.

It is intended that this exploration of different interfaces of law and medicine will present a general overview. These reflections on some comparisons of and, particularly, contrasts between the health professions and the legal profession do not aspire to the profundity, moderation, or elegance of, for instance, Prof. William Curran's recent learned discourse. They are self-consciously more polemical than a truly scholarly study should be, and include some crude or simplistic characterizations. Their purpose is to provoke reaction, however, and thereby to contribute to health professionals' and lawyers' consideration of their experience of each other.

It is trite to observe that the two inevitabilities of modern existence are death and taxes. It is more interesting to observe the consequence, however: that the professional mediators of death and taxes—namely, health professionals and lawyers—are equally inescapable. Members of these professions are not necessarily propelled into each other's arms, but in their professional and personal lives they cannot extricate themselves from each other's disciplines.

Over the past ten years or so, an increasing number of health care institutions have established institutional ethics committees (IECs) for the purposes of education, policy making, and review of cases. Proponents of IECs view them as important interdisciplinary mechanisms that improve decision making in the complex cases that sometimes arise in clinical medicine. Critics of IECs tend to interpret them as threats to the autonomy of physicians and an unnecessary bureaucratization of decision making. In spite of these criticisms, IECs seem to have filled an important role in many institutions and have a reasonably secure future.

The increased concern with cost-containment and the cost-efficient delivery of medical services has led to fundamental changes in the management of health care institutions over the past few decades. Health care is becoming concentrated in large facilities, since they are perceived to have the resources to plan cost-efficient allocation and utilization of medical services. In the past, physicians provided most of the executive and administrative leadership in American health care facilities and used them primarily for the private practice of medicine. Today, professional administrators and bureaucrats run these institutions as large corporate entities. Moreover, more and more physicians are taking salaried positions, due in large part to the oversupply of doctors that developed during the 1970s and 1980s. In fact, some observers believe that in the near future, the majority of physicians will be “employees” of some kind.

Until recently, if one asked the proverbial person on the street to list maternal-fetal conflicts, he or she would have mentioned abortion and, when pressed to continue, looked at the questioner blankly. Now, however, the populace is becoming aware of a host of maternal-fetal conflicts. Indeed, mother-and-child, long a somewhat romanticized unity, are increasingly being treated by physicians, courts, and the media as potential adversaries, locked in battle on the rather inconvenient battleground of the woman's belly.

Some of these newly publicized conflicts—pregnant women abusing drugs or alcohol, or continuing to work in occupations hazardous to fetal health—are not all that new: the hazards of various substances have been known for years. Other of the conflicts are new, inasmuch as doctors could not recommend Cesareans or other procedures for the fetus benefit until they could detect fetal problems during or before labor. But probably what is most unprecedented is that now, suddenly, physicians are seeking court intervention to protect these imperiled fetuses—intervention that, inevitably, constitutes a significant intrusion into the woman's conduct during pregnancy or birth.

In 1974 the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research considered many aspects of fetal research. The Commission received some detailed ethical, legal, and scientific analyses, invited public testimony, and recommended guidelines for biomedical research involving the human fetus. One of the authors of the present article (KJR) chaired the Commission. Many of its recommendations became federal regulations on fetal research issued in 1975.

These regulations explicitly govern only research “conducted by the Department of Health and Human Services (DHHS) or funded in whole or in part by a Department grant, contract, cooperative agreement or fellowship.” However, as Baron pointed out in his legal review, they effectively cover all federally funded institutions, regardless of the source of the funds the institution may be using for fetal research.

Throughout history, disease has been associated with bigotry and prejudice. Since biblical times the leper has been shunned and treated as an outcast. In the Middle Ages, the arrival of the plague brought with it violent social upheaval and persecution of the Jews. In the earlier part of this century, prostitutes thought to have venereal disease were quarantined en masse.

Given this sorrowful history, it is not surprising that the AIDS epidemic has brought with it mistreatment of persons associated with AIDS, the term I shall use for people who either have or are thought to have AIDS, AIDS-related complex (ARC), or antibodies to the virus that causes the disease. Indeed, considering that AIDS is a sexually transmitted disease that has in this country primarily afflicted homosexual men and intravenous (IV) drug abusers, it is perhaps surprising that overt acts of prejudice have not been more common.