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Engaging Bioethics
Engaging Bioethics: An Introduction with Case Studies draws students into this rapidly changing field, helping
them to actively untangle the many issues at the intersection of medicine and moral concern. Presuming
readers start with no background in philosophy, it offers balanced, philosophically based, and rigorous inquiry
for undergraduates throughout the humanities and social sciences as well as for health care professionals-in-
training, including students in medical school, pre-medicine, nursing, public health, and those studying to
assist physicians in various capacities. Written by an author team with more than three decades of combined
experience teaching bioethics, this book offers
Flexibility to the instructor, with chapters that can be read independently and in an order that fits the
course structure
Up-to-date coverage of current controversies on topics such as vaccination, access to health care, new
reproductive technologies, genetics, biomedical research on human and animal subjects, medically
assisted death, abortion, medical confidentiality, and disclosure
Attention to issues of gender, race, cultural diversity, and justice in health care
Integration with case studies and primary sources
Pedagogical features to help instructors and students, including
Chapter learning objectives
Text boxes and figures to explain important terms, concepts, and cases
End-of-chapter summaries, key words, and annotated further readings
Discussion cases and questions
Appendices on moral reasoning and the history of ethical issues at the end and beginning of
life
An index of cases discussed in the book and extensive glossary/index
A companion website (www.routledge.com/cw/seay) with a virtual anthology linking to key primary
sources, a test bank, topics for papers, and PowerPoints for lectures and class discussion.
Gary Seay is professor of philosophy at Medgar Evers College of the City University of New York.
Susana Nuccetelli is professor of philosophy at St. Cloud State University in Minnesota.
2
Praise for this edition
“Seay and Nuccetelli have done an admirable job of distilling and making accessible a large body of medical
information, complex case law, and philosophical ethics. Their text makes the project of developing
competence and understanding in bioethics a lot less daunting, without simplifying the philosophical and
scientific issues. The book is organized so that instructors can easily design a course around a subset of the
topics covered, and its teaching and learning resources are outstanding. This is the best bioethics textbook I am
aware of, for students and teachers alike.”
Brandon Cooke, Professor and Chair (Philosophy),
Minnesota State University, Mankato
“This is a concise introduction to bioethics that covers a lot of ground. The chapters are sufficiently self-
contained so that the text can be adapted to different course designs, and the boxes and figures throughout are
helpful learning aids. Important cases are discussed but don’t dominate the discussion, so the emphasis remains
on the philosophical arguments and issues.”
William A. Bauer, Teaching Assistant Professor,
North Carolina State University
“Seay and Nuccetelli offer a refreshing and bold approach to bioethics that confronts readers directly, requiring
them to wrestle intimately with the most pressing issues through numerous case studies and a nuanced
analysis of the core concepts and principles. The authors strike a delicate balance between accessibility and
depth, with the results being a text that is eminently readable. This is not easy material, but the authors have
created a text open to readers with little or no philosophical background without sacrificing the complexity
found in these important discussions. They also offer an expansive and up-to-date sourcebook to find primary
sources online in the companion website.”
Scott O’Leary, Assistant Professor, University of Saint Mary
3
Engaging Bioethics
An Introduction with Case Studies
Gary Seay and Susana Nuccetelli
4
First published 2017
by Routledge
711 Third Avenue, New York, NY 10017
and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2017 Taylor & Francis
The right of Gary Seay and Susana Nuccetelli to be identified as the authors of this work has been asserted by
them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any
electronic, mechanical, or other means, now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only
for identification and explanation without intent to infringe.
Library of Congress Cataloging-in-Publication Data
Names: Seay, Gary, author. | Nuccetelli, Susana, author.
Title: Engaging bioethics : an introduction with case studies / by Gary Seay and Susana Nuccetelli.
Description: New York, NY : Routledge, 2017. | Includes bibliographical references and index.
Identifiers: LCCN 2016028430 | ISBN 9780415837958 (pbk : alk. paper) | ISBN 9780415837941
(hbk : alk. paper) | ISBN 9780203788707 (ebk)
Subjects: LCSH: Medical ethics. Medical ethics—Case studies.
Classification: LCC R724 .S397 2017 | DDC 174.2—dc23
LC record available at https://lccn.loc.gov/2016028430
ISBN: 9780415837941 (hbk)
ISBN: 9780415837958 (pbk)
ISBN: 9780203788707 (ebk)
Typeset in Minion Pro
by Apex CoVantage, LLC
5
Contents
About the Authors

Preface
Abbreviations
Part I Bioethics and Moral Theory

Chapter 1 The Study of Morality
Chapter 2 Philosophical Accounts of Morality
Part II Theoretical and Methodological Issues in Bioethics

Chapter 3 Principle-Oriented and Case-Oriented Bioethics
Chapter 4 Managing Patient Information
Chapter 5 Consent with Competence and Without
Part III Moral Issues at the End of Life
Chapter 6 Death and Dying
Chapter 7 When Life Supports Are Futile or Refused
Chapter 8 Medically Assisted Death
Chapter 9 End-of-Life Measures for Severely Compromised Newborns
Part IV Moral Issues at the Beginning of Life
Chapter 10 Personhood in the Abortion Debate
Chapter 11 Abortion in the Typical Case
Chapter 12 Abortion in the Hard Cases
Chapter 13 Conflicts of Rights at Life’s Beginning
Part V The Biotechnological Revolution

Chapter 14 New Reproductive Technologies
6
Chapter 15 Human Genetic Engineering
Part VI Medicine and Society
Chapter 16 Biomedical Research on Animals
Chapter 17 Biomedical Research on Humans
Chapter 18 Justice in Health Care
Appendix A: The Tools of Ethical Inquiry

Appendix B: Evolving Attitudes toward Ending or Preventing Human Life
Glossary/Index
Index of Cases
Additional References
7
Detailed Contents
About the Authors

Preface
Abbreviations
Part I Bioethics and Moral Theory

Chapter 1 The Study of Morality
1.1 Rev. Jacobson’s Refusal of Vaccination
1.2 The Evolution of Bioethics from Professional Ethics
The Hippocratic Tradition
Medieval Developments
Later Developments
Contemporary Bioethics
1.3 Bioethics in the Context of Ethics
Descriptive and Normative Senses of ‘Morality’
The Philosophical Study of Morality
Normative Ethics
1.4 Chapter Summary
1.5 Study Aids
Key Words
Questions and Cases for Further Consideration
Suggested Readings
Chapter 2 Philosophical Accounts of Morality

2.1 Baby Theresa and the Problem of Anencephalic Organ Sources
2.2 Authority Is the Source of Normativity
Culture as Moral Authority
God as Moral Authority
2.3 Authority Is Not the Source of Normativity
Natural Law Theory
Consequentialism
Kantian Ethics
Virtue Ethics
Care Ethics
Rossian Ethics
Particularism
2.4 Chapter Summary
2.5 Study Aids
Key Words
Suggested Readings
8
Part II Theoretical and Methodological Issues in Bioethics
Chapter 3 Principle-Oriented and Case-Oriented Bioethics

3.1 Dax’s Case
3.2 Principlism
Autonomy
Nonmaleficence
Beneficence and Paternalism
3.3 Casuistry
How Casuistry Works
The Top-Down/Bottom-Up Dichotomy
3.4 Chapter Summary
3.5 Study Aids
Key Words
Suggested Readings
Chapter 4 Managing Patient Information

4.1 The Tarasoff Decision
4.2 Medical Confidentiality
Philosophical Grounds
Absolutism, Universalism, and Skepticism
4.3 Must Health Care Professionals Always Tell the Truth?
Disclosure and Deception Defined
Evolving Attitudes toward Disclosure
Moral Grounds for Disclosure
The Problem of Culture
4.4 Genetic Information
Genetic Knowledge
Genetic Pseudo-Knowledge
Nondirective Genetic Counseling
Is There a Right to Genetic Ignorance?
4.5 Chapter Summary
4.6 Study Aids
Key Words
Suggested Readings
Chapter 5 Consent with Competence and Without

5.1 Natanson v Kline: The Limits of Paternalistic Beneficence
5.2 The Elements of Informed Consent
Consent
Information
Understanding and Voluntariness
Competence
5.3 Exceptions and Doubts
Exceptions to Informed Consent
Skepticism about Informed Consent
5.4 Consent in the Absence of Competence
Decisionmaking for Previously Competent Adults
Decisionmaking for Never Competent Adults
9
Decisionmaking for Children
Decisionmaking in Ashley X
5.5 Chapter Summary
5.6 Study Aids
Key Words
Suggested Readings
Part III Moral Issues at the End of Life
Chapter 6 Death and Dying

6.1 Was Jahi McMath Dead?
6.2 Accounting for Human Death
Western Thought on Human Death
The Standard Account of Death
6.3 Cardiopulmonary Death
The Cardiopulmonary Criterion
Donation after Cardiac Death
6.4 Brain Death
Disorders of Consciousness versus Brain Death
Whole-Brain versus Brainstem Death
Higher-Brain Death
6.5 Chapter Summary
6.6 Study Aids
Key Words
Suggested Readings
Chapter 7 When Life Supports Are Futile or Refused

7.1 Was Continued Life in Tony Bland’s Best Interests?
7.2 Forgoing Life Supports
Karen Quinlan
Nancy Cruzan
Nancy B
7.3 Medical Futility at the End of Life
What Is Medical Futility?
Types of Futility
The Moral Grounds of Medical Futility
Disagreements about Futility Judgments
7.4 Objections and Alternatives to Medical Futility
The Sanctity-of-Life Doctrine
Ordinary versus Extraordinary Means
7.5 Chapter Summary
7.6 Study Aids
Key Words
Suggested Readings
Chapter 8 Medically Assisted Death

8.1 Dr. Coxs Use of Euthanasia
10
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8.2 Medical Euthanasia
Euthanasia and Other End-of-Life Measures
Types of Euthanasia
Passive versus Active Euthanasia
8.3 Physician-Assisted Suicide
Physician-Assisted Suicide and Voluntary Active Euthanasia
Oregons Death with Dignity Act
Suicide Tourism
8.4 Physician-Assisted Dying: For and Against
Physician-Assisted Dying Is Morally Permissible
Physician-Assisted Dying Is Morally Forbidden
The Dutch Experience
8.5 Chapter Summary
8.6 Study Aids
Key Words
Suggested Readings
Chapter 9 End-of-Life Measures for Severely Compromised Newborns

9.1 Baby Jane Doe: Parental Choice and State Duties
9.2 Decisionmaking Standards for Compromised Newborns
The Baby Doe Regulations
From the Baby Doe Regulations to HCA v Miller
9.3 Prematurity and Low Birthweight
Prematurity
Low Birthweight
The Ethical Issues
9.4 Critical Care for Severely Compromised Newborns
For Providing Critical Care
Against Providing Critical Care
Neonatal Euthanasia
9.5 Chapter Summary
9.6 Study Aids
Key Words
Suggested Readings
Part IV Moral Issues at the Beginning of Life

Chapter 10 Personhood in the Abortion Debate
10.1 Marlise Muñoz: Pregnant but Dead
10.2 Personhood
The Ambiguity of ‘Person’
Criteria of Personhood
Over-Inclusiveness, Under-Inclusiveness, and Speciesism
10.3 The Abortion Debate
Does the Debate Matter?
How to Move Ahead
Personhood in the Abortion Debate
10.4 Chapter Summary
11
10.5 Study Aids
Key Words
Suggested Readings
Chapter 11 Abortion in the Typical Case

11.1 Roe v Wade: A Compromise on Abortion
11.2 Abortion: Some Facts
What Is Abortion?
The Practice of Abortion
11.3 Against the Moral Permissibility of Abortion
The Sanctity of Life
Developmental Continuity
Kind Essentialism
Potentiality
The Loss of a Valuable Future
11.4 For the Moral Permissibility of Abortion
Skepticism about Fetal Personhood
The Good Samaritan Argument
11.5 Intermediate Views
Early Brain Activity
Organized Cortical Activity
Fetal Interests
11.7 Study Aids
Key Words
Suggested Readings
Chapter 12 Abortion in the Hard Cases

12.1 Sherri Finkbine’s Choices
12.2 Two Hard Cases for Abortion Critics
Abortion to Save the Mother’s Life or Health
Abortion for Fetal Defects
12.3 Two Hard Cases for Abortion Defenders
Abortion for Sex Selection
Late-Term Abortion
12.5 Study Aids
Key Words
Suggested Readings
Chapter 13 Conflicts of Rights at Life’s Beginning

13.1 Deborah Zimmerman: Alcohol Abuse During Pregnancy
13.2 Maternal-Fetal Conflicts
Some Facts about Fetal Harm
Maternal Obligations and Rights
A Dilemma for Public Policy
13.3 Maternal Rights and the State’s Obligations
Abortion Policy in the UK
12
Abortion Policy in the US
Banning ‘Partial-Birth Abortion’
Restricting Public Funding for Abortion
13.4 Maternal Rights and Conscientious Objectors
Women/Health Care Providers Conflicts
The Duties of Conscientious Objectors
The Referral Problem
13.6 Study Aids
Key Words
Suggested Readings
Part V The Biotechnological Revolution

Chapter 14 New Reproductive Technologies
14.1 Nadya Suleman’s Octuplets
14.2 The Simple Cases
The Simple Case of In-Vitro Fertilization
Fertility Therapy
The Problem of Multiples
14.3 The Complex Cases
Egg Donation, Gestational Surrogacy, and Postmenopausal Motherhood
Some Facts about Egg Donors and Gestational Carriers
Moral Controversies
14.5 Study Aids
Key Words
Suggested Readings
Chapter 15 Human Genetic Engineering

15.1 Designing Deaf Baby
15.2 Some Moral Controversies in Reprogenetics
Preimplantation Genetic Diagnosis
Human Reproductive Cloning
Early Eugenics
15.3 Human Genetic Enhancement
The Posthuman Scenario
Defining ‘Enhancement’
Designer Babies
15.5 Study Aids
Key Words
Suggested Readings
Part VI Medicine and Society
13
Chapter 16 Biomedical Research on Animals
16.1 Dr. Gennarelli’s Head-Injury Study
16.2 The Animal Experimentation Debate
Abolitionism and Its Rivals
The Benefits Argument
Doubts about the Benefits of Animal Research
16.3 Animal Moral Standing
For the Moral Standing of Animals
Speciesism versus Humanism
Skepticism about Animals’ Moral Standing
Animal Law
16.5 Study Aids
Key Words
Suggested Readings
Chapter 17 Biomedical Research on Humans

17.1 The Tuskegee Untreated-Syphilis Study
17.2 Ethical Issues in Research on Human Subjects
Early Ethical Guidelines
What Researchers Owe to Subjects
17.3 Research Using Human Biological Material
The Case of Henrietta Lacks
Ms. Lacks’s Descendants
17.4 Epidemiological and Clinical Research
Epidemiological Research
Randomized Clinical Trials
17.5 Gene Therapy
Therapy or Research?
The Jesse Gelsinger Case
17.6 Research in Developing Countries
The AZT Trials in Sub-Saharan Africa
Cultural Imperialism versus Relativism
Moral Lessons from the AZT Trials
17.8 Study Aids
Key Words
Suggested Readings
Chapter 18 Justice in Health Care

18.1 Shortland v Northland Health: Rationing Is Not Futility
18.2 Allocation of Health Care Resources
Distributive Justice
Priority Setting
Distributive Justice in Organ Transplants
18.3 Access to Health Care
Health Inequalities and Inequities
The Right to Health Care
Universal Coverage
14
18.5 Study Aids
Key Words
Suggested Readings
Appendix A: The Tools of Ethical Inquiry

Moral Judgment
Normative versus Descriptive Judgment
Moral Judgment Characterized
Moral Argument
Deductive and Inductive Reasoning
Concepts and Facts
Moral Principles, Commonsense Morality, and Reflective Equilibrium
Missing Premises and Extended Arguments
Check Your Understanding
Appendix B: Evolving Attitudes toward Ending or Preventing Human Life
Abortion, Infanticide, and Contraception
Euthanasia and Suicide
Glossary/Index
Index of Cases
Additional References
15
About the Authors
Gary Seay is professor of philosophy at Medgar Evers College of the City University of New York. With
Susana Nuccetelli, he is co-editor of Ethical Naturalism: Current Debates (Cambridge University Press, 2012)
and Themes from G. E. Moore: New Essays in Epistemology and Ethics (Oxford University Press, 2007). He has
served on the American Philosophical Associations Committee on Philosophy and Medicine and was
consulting bioethicist on the Ethics Committee of the New York Hospital Medical Center of Queens.
Susana Nuccetelli is professor of philosophy at St. Cloud State University in Minnesota. Her articles in ethics,
philosophy of language, and Latin American philosophy have appeared in many edited volumes and journals.
She is the author of Latin American Thought: Philosophical Problems and Arguments (Westview Press, 2002).
With Gary Seay, she is the author of How to Think Logically (2e, Pearson, 2012).
16
Preface
Our view in writing this book represents a departure from the prevailing wisdom about how bioethics should
be taught. For most of the subjects brief history, questions about pedagogy have been mostly cast in terms of
two governing assumptions: first, that it is chiefly medical school students in training to be physicians, along
with some undergraduate pre-med majors, who take courses in bioethics, and, second, that the best way for
these students to understand the central issues of the discipline is through using an anthology of original
sources. But neither of these assumptions any longer applies. Students enrolled in bioethics today are as likely
to be undergraduates in nursing programs or training to be physician-assistants, or physical therapists, as med
school students. And there are better ways to teach these diverse kinds of students than to throw at them a
massive, often expensive, collection of primary sources, culled from various journals in medicine, philosophy,
and law. This textbook borrows whats best of the traditional approachusing case studies and providing
references for original sources onlineand combines it with a clear, student-friendly introduction to the complex
subjects and arguments, including the major moral controversies of 21st-century medicine. The book should
therefore be valuable to students with different backgrounds and who are approaching the ethics of medicine
from numerous angles. There are, of course, already other bioethics textbooks, but, we think, none that cover
so thoroughly and lucidly the major moral controversies of contemporary bioethics as this book does.
Engaging Bioethics offers flexibility to the instructor. It can be used as either a stand-alone textbook or in
combination with one of the major anthologies, as its eighteen chapters, grouped in six parts, unfold in a way
that allows instructors to supplement each topic with readings of original sources. A virtual anthology on the
companion website links to key original sources, further allowing for seamless integration of primary sources.
At the same time, chapters are generally self-contained units, and the topics are presented in a way that
permits instructors to assign them in different sequences according to their needs. For example, instructors
wishing to spend less time on theoretical issues could skip Chapters 1 and 2, and fill in the gaps on moral
theory and methodology as the course unfolds. Instructors who want to devote more time to moral reasoning
may assign Appendix A, while those wishing to cover some of the history of end- and beginning-of-life issues
may assign Appendix B. Throughout, we have aimed at even-handedness in reconstructing facts and
arguments, leaving alternative evaluations for further discussion in the classroom.
Intended for students of introductory courses in bioethics or biomedical ethics, this book assumes no
background in those subjects, or in moral philosophy. Weve tried to make the writing style simple and direct,
with jargon kept to a minimum. Scattered throughout are special-emphasis boxes and figures in which
important points are summarized to help students focus on crucial distinctions and fundamental ideas. Each
chapter opens with a set of learning objectives to frame the chapters goals and a case study to get students
immediately engaged. At the end of each chapter are summaries, key words (bolded throughout on first use,
and defined in a glossary at the end of the book), brief annotated lists of suggested readings, and some
questions and cases for further consideration. Among these, in each chapter, is a case raising a cultural, racial,
or gender issue in medicine, always listed at the end for easy reference. Pedagogical aids at the back of the
book include an index of all cases, a list of major abbreviations, additional bibliographical references, and a
glossary. More tools can be found at the books companion website, with open-access resources for students and
password-protected instructors resources. Instructors resources include a test bank of multiple-choice questions
with answers, topics for papers, and PowerPoint presentations. For students and instructors alike, we have
created a unique virtual anthology, listing original sources that are available electronically through most
university libraries subscriptions to databases. This feature includes links to most of the Suggested Readings
found at the end of each chapter (marked with an asterisk in the chapter and online), as well as additional links
selected from a variety of sources, including professional associations, news items, legislation, blogs,
interviews, podcasts, and videos relevant to the chapter topics. Wherever possible, links are provided via
multiple sources, with stable URLs and/or DOIs. This unique approach allows instructors to teach from a
17
textbook while also supplementing with original sources without the burden of an expensive print anthology,
whether they assign additional readings or use them for research papers or homework assignments.
Finally, two notes about terminology are in order. One concerns the absence of a universally accepted
collective noun for all members of the medical team. For brevity, when possible we have used health care
provider with this comprehensive sense. The other issue concerns our eclectic way to avoid sexist language
throughout. Rather than always including all pronouns (e.g., he/her, his or hers), which can become messy to
read, we simply tried to balance our use of masculine and feminine pronouns or use they/their.
We wish to acknowledge some contributions that have made this a much better textbook, especially those of
our very patient and unfailingly helpful editors at Routledge, Andrew Beck and Alison Daltroy. Special thanks
are due also to Natasha Meed and Josiah Enninga for their technical assistance and to anonymous reviewers
who provided insightful guidance. There are several persons to whom we owe thanks for comments and
assistance with details that helped to shape our views on various topics: Stefan Baumrin, Tony Cunningham,
Jordan Curnutt, Rosamond Rhodes, Alan Seay, and Mark Timmons. Our thanks go also to our students at
Medgar Evers College of the City University of New York and at St. Cloud State University, on whom we tried
earlier drafts of the chapters.
18
Abbreviations
AMA American Medical Association

ANH Artificial Nutrition and Hydration
AWA Animal Welfare Act
D&X Intact Dilation and Extraction
DCD Donation after Cardiac Death
FLOA Future-Like-Ours Argument
EoL End-of-life Measure
ER Emergency Room
FDA Food and Drug Administration
GP Groningen Protocol
GSA Good Samaritan Argument
HGP Human Genome Project
ICU Intensive Care Unit
QALY Quality-Adjusted Life Years
IRB Institutional Review Board
IVF In-Vitro Fertilization
LST Life-Sustaining Treatment
NICU Neonatal Intensive Care Unit
NRT New Reproductive Technology
PAD Physician-Assisted Dying
PAS Physician-Assisted Suicide
PGD Preimplantation Genetic Diagnosis
PPACA Patient Protection and Affordable Care Act
PVS Permanent Vegetative State
RCT Randomized Clinical Trials
SSA Sex-Selective Abortion
SSS Sliding-Scale Standard
STD Sexually Transmitted Disease
UDD Unified Determination of Death Act
HRC Human Reproductive Cloning
VAE Voluntary Active Euthanasia
VLBW Very Low Birthweight
WHO World Health Organization
19
Part I
Bioethics and Moral Theory
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1 The Study of Morality
Learning Objectives
In reading this chapter you will
► Identify the historical roots of contemporary bioethics in the development of Western

medicine and its professional ethics.
► Recognize descriptive and normative senses of morality.
► Distinguish philosophical studies of morality from those of the sciences.
► Place bioethics in the landscape of ethics.
This chapter introduces bioethics as a practice and an area of ethics of interest to several disciplines. It does so
by first looking at an early landmark case where protecting public health infringed on an individual liberty to
refuse vaccination. Until the 1970s, such conflicts were resolved by appeal to accepted practice and professional
codes. After briefly reviewing the history of these, the chapter looks closely at bioethics today, outlining its
main branches and relations to other areas of ethics.
21
■ 1.1 Rev. Jacobson’s Refusal of Vaccination
The advantages of vaccination policies to prevent outbreaks of infectious disease are now widely
acknowledged. Yet vaccination has not always been smooth sledding. In 1758 the American Calvinist
theologian Jonathan Edwards died of a smallpox inoculation shortly after his inauguration as president of what
is today Princeton University. Such casualties were not uncommon when vaccinations were first introduced.
The eventual eradication of smallpox and the significant progress that has been made in reducing the threat of
other serious diseases, such as polio and measles, are however among the global, public-health successes of
vaccination. In the US, the moral and legal grounds of vaccination mandates by the state came to be questioned
most forcefully when a smallpox epidemic spread through the Northeast in 1901, causing 773 documented
cases and 97 deaths. The following year Cambridge, Massachusetts reported 2,314 infected individuals, of
whom 284 died. Citing an existing statute, the city’s board of health decided to enforce vaccination against
smallpox for all residents, and stipulated a five-dollar fine for those who failed to comply. Among the
delinquents was the Reverend Henning Jacobson, who refused the vaccine for himself and his son. He had a
previous adverse reaction to it and, more important, thought the ordinance violated his right to care for his
own body in the way he thought best.
The city responded by requesting payment of the fine, which prompted Jacobson to initiate legal action. The
court decided that, under the police power of the state, the city’s ordinance did not violate any liberty rights
guaranteed by the Fourteenth Amendment. Jacobson then appealed to the US Supreme Court, which in 1905
found for the state, emphasizing the Commonwealth’s power to enact and enforce laws aimed at protecting the
public from communicable diseases.
■■■
This was the first ruling by the US Supreme Court concerning the scope of state power in public health law.
More than a century later, vaccination continues to present moral and legal challenges worldwide. In 2009, 5-
year-old Edgar Hernandez, soon to be known as ‘patient zero,’ returned from school one day with symptoms
consistent with ‘swine flu’ (the H1N1-virus infection). The virus was not to remain in his remote Mexican
village. A month later, it afflicted some 1,000 individuals in all parts of the United States. By June, there were
18,000 reported cases. Five months later, the Food and Drug Administration approved the use of H1N1
vaccines, and roughly 61 million Americans were vaccinated within the first three months. Faced with a short
supply of the new vaccine, the State of New York’s Department of Public Health sought to protect hospital
patients, who generally have greater vulnerability to infectious disease, by imposing vaccination mandates for
health care providers. It considered the mandate justified by precedent from state court rulings in previous
cases of mandatory rubella vaccination and annual tuberculosis testing of health care providers. The New York
Times reported that three nurses obtained the mandate’s suspension by questioning the vaccine’s proven
effectiveness.1
They thus won a legal battle but not the moral war. For as health care providers, they faced a moral conflict:
on the one hand, they had the duty to promote their patients’ health; on the other, the exercise of that duty
interfered with their individual liberty interest to refuse vaccination or any other medical treatment. In
Jacobson v Massachusetts, the Supreme Court emphasized that many liberty interests must be limited in
pursuit of the common good because “a community has the right to protect itself against an epidemic of disease
which threatens the safety of its members.”
Controversies over vaccination mandates may result from differing beliefs about the facts, the law, religion,
or morality. Rev. Jacobson questioned the facts—namely, whether
Unvaccinated individuals put the public at an increased risk of contracting smallpox.

The state had the power to enforce vaccination ordinances.
The epidemic would spread according to natural, rather than, Divine plans.
22
But his deepest disagreement with the court concerned the right thing to do, from the moral perspective, when
protecting public health infringes on a person’s liberties. Questions of this sort pertain to bioethics, a practice
and a field of academic inquiry with roots in the development of Western medicine and the professional codes
of health providers.
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23
■ 1.2 The Evolution of Bioethics from Professional Ethics
The Hippocratic Tradition
The patient’s right to refuse medical treatment, including vaccination, was generally ignored until the rise of
contemporary bioethics in the 1960s and 1970s. But long before that there were concerns in medicine about
other matters of moral right and wrong, especially in connection with patient welfare. From the very
beginnings of Western medicine in 5th-century Greece, physicians sought to regulate their practice by moral
rules. Those who embraced the teachings of Hippocrates of Kos (ca. 460–370 BCE) hoped their rules would be
adopted by other physicians. In this way, persons of defective character—including quacks and dishonest
schemers of all kinds—might find the calling of medicine too morally rigorous for their taste and be driven
away. The rules of Hippocratic medicine became background assumptions that persisted through more than
20 centuries until the rise of contemporary bioethics. They chiefly concern duties and decorum. Among other
things, Hippocratic doctors pledged to avoid harming their patients, to keep confidential the things revealed to
them in the course of treatment, and to ask as a fee no more than what the patient could reasonably afford to
pay. But they were also expected to cultivate certain traits of character or virtues. Physicians should have a
demeanor of seriousness, scholarliness, dignity, and reserve. They were to be scrupulously honest and polite
with their patients, striving always to bring credit to their profession and to put the patient at ease. In addition,
they were to regard the practice of medicine as a ‘holy’ calling, and hold their mentors in great reverence.
It is striking how many of these ideals persist even today in the mystique of medicine that undoubtedly
contributes to its high social status. And although some Hippocratic duties such as what appears to be a strict
prohibition of both abortion and euthanasia are controversial today, others continue to carry weight in
contemporary bioethics. These include that patients have an obligation to cooperate with their health care
providers, and that physicians have a duty to relieve suffering and should neither try to apply curative
treatment where no cure is possible nor attempt to save from death a patient who cannot be saved.
Medieval Developments
The Influence of Christianity and Maimonides
Over the centuries, a number of other ethical rules have taken hold in the practice of medicine. Some of these
originated in the late Roman period and early Middle Ages owing in part to the influence of Christianity, such
as the duty of medical professionals not to abandon their patients. St. Basil of Cappadocia, probably inspired by
Jesus’ teaching that one must care for the sick, founded the first hospital at Caesarea in 372, where nuns and
monks served as health care providers. Hospitals on this model soon began to spring up all over Christendom.
At the same time, the Hippocratic tradition took on a new moral imperative for physicians: the duty to care for
the sick, putting the patient’s interest first, even when they risked exposure to deadly disease. Later, during the
high Middle Ages, this duty came to be interpreted in Italian commercial cities as a duty of health care
providers not to abandon patients, even in a time of plague, without regard to risk to themselves. Not
surprisingly, the compliance with this new medical duty was uneven. Some were able to muster the courage to
act on it, but many did not. For nurses, such a stringent duty of care had long been taken for granted, a fact
evident later in Florence Nightingale’s criticism of medical professionals who care more about themselves than
about their patients.
In the medieval period, however, the moral influences on Western medical ethics came not only from
Christianity. Jewish scholars also made substantial contributions. Chief among them was the physician and
philosopher Maimonides (1135–1204). His voluminous writings as a Talmudic scholar touch occasionally on
ethics in medicine such as the duties to care for the sick and wounded and to preserve human life whenever
possible. So important was the latter duty, Maimonides thought, that religious duties—even Sabbath
observance—could be suspended, if necessary, to comply with it.
Thomist Ethics
24
Another medieval thinker with influential views on the ethics of medicine was Thomas Aquinas (1225–1274),
the Italian Catholic theologian and philosopher whose writings are the foundations of what’s now called
‘Thomism.’ Thomism sanctions an iron-clad duty of health care professionals to protect and extend human life
whenever possible. In reasoning about this weightiest of moral matters, Thomists think that the intention with
which an action is taken is important in assessing whether the action is morally right or wrong—something
consistent with the common intuition that, for instance, an amputation, normally forbidden on moral grounds
as mutilation, would be right when necessary to remove a gangrenous limb, thereby saving a life.
Thomism also refined casuistry, a method for deciding what to do or believe, morally, about any given case
that’s now preferred by some bioethicists over an alternative method that invokes general principles. Casuist
decisionmaking begins by identifying the morally relevant facts of a case, drawing moral conclusions by
comparing it with similar cases that have been already decided. We consider both methods in Chapter 3. For
now, note that Thomist bioethics continues to be a force today.
Later Developments
Percival’s Medical Ethics
Some new developments occurred at the very beginning of the 19th century. In 1803 an English doctor, Thomas
Percival (1740–1804) of Manchester, introduced the expression ‘medical ethics’ in an influential book with that
title. It was a large-scale treatise dealing with doctors’ duties in four areas: hospitals, the law, the professional
conduct of physicians in private practice, and relations with pharmacists. Physicians have those duties because
they are trusted to act in the best interests of the patient. Their good reputation depends on such public trust,
which must never be betrayed. It is earned through an uncompromising devotion to the patient’s welfare, high
scientific standards, and the benefit physicians bring to society. Doctors must also respect their patients, the
poor and obscure no less than the wealthy and prominent. But they are also paternalistic toward them: the
physician determines what’s in the patients’ best interests, and makes treatment decisions accordingly. We
return to paternalism in Chapter 3.
Percival followed the Hippocratic tradition, not only in assuming paternalism, but also in rejecting strict
veracity as a duty of physicians toward patients. A physician may deceive patients whenever she thinks that
not to know the truth is in their best interest. But his contemporary, John Gregory (1724–1773), a respected
Scottish physician and professor at Edinburgh, took just the opposite view, and over the next century and a
half he was joined by three eminent American medical school professors who wrote on ethical questions in
medicine, Benjamin Rush (1746–1813), Worthington Hooker (1806–1867), and Richard Clarke Cabot (1868–
1939). All argued that doctors have a duty to tell the truth to their patients.
In contemporary bioethics, the trend to favor a strict duty of veracity has grown parallel to the rise of
awareness about respect for patient autonomy, a medical duty also to be considered at some length in Chapter
3. Here, let’s note that this duty correlates with
A patient’s right to make self-regarding decisions about medical treatment freely, without any coercive
interference.
In the English-speaking world, owing partly to the human-rights movements of the 1960s and 70s, and partly
to the efforts of 20th-century bioethicists, respect for patient autonomy now prevails over paternalism.
Protestant theologians Joseph Fletcher (1905–1991) and Paul Ramsey (1914–1988), two especially noteworthy
pioneers of bioethics, were among those who offered influential arguments for this change. The increasing
acceptance of those arguments led to acceptance of the now familiar right of patients to refuse treatment,
including life-saving treatment.
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©iStockPhoto/ericsphotography
25
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Turning next to the question whether the cities whose operations
have been examined have been able to sell to the best advantage
the lands acquired, the answer once more is in the negative. Baron
Haussmann, summing up his vast experience with city activity and
private activity in Paris in 1852 to 1869, said that private enterprise
had innumerable ways of nursing and developing real estate that the
city neither could invent nor imitate.
In conclusion, it may be added that in Paris there has been since

1876 an exceedingly intelligent minority which has held that the city
should not itself execute any more street improvements, but should
leave such operations to private enterprise, subsidizing the latter for
that purpose.
In London, the Metropolitan Board of Works was succeeded in
1889 by the London County Council. The latter body in 1890 asked
Parliament for permission to supplement the practice of
“recoupment” by the so-called American practice of assessing a
betterment tax upon property enhanced in value by public
improvements. One may, perhaps, go farther, and say that the
London County Council was ready to place its main reliance upon the
practice of assessing a betterment tax, and to relegate to a
subsidiary position the practice of recoupment. Be that as it may, the
London County Council, from 1890 to 1898, declined to proceed with
any large improvement schemes, because Parliament refused to give
it power to employ the betterment system as extensively as it
desired to employ it. In 1898, or 1899, Parliament yielded, and the
London County Council proceeded with the Strand improvement
scheme.
report on the french system for taking land by right of eminent domain. House Doc.
288, pp. 44-52
In order to appreciate the system which obtains in France for
taking land by right of eminent domain, it should be understood at
the outset that the initiative for the construction of public works is
rarely taken by the local deliberative body, the municipal council, for
instance, but almost always by the executive, or, as they would term
it, the administration, the head of which is the chief of the State,
with his various ministers, while the prefect in each department and
the under prefects and other officers represent the lower ranks of
the administrative hierarchy.
This fact explains why the preliminary procedure, which has for its
object to determine with careful regard for private interests the
exact limits of the land required to be taken, is, even when
deliberative in character, considered a part of executive rather than
of legislative functions.
Provisions for compulsory taking of land outside the limits of the

proposed public work:—
By a decree of March 26, 1852, it was enacted that: “In any plan
for taking land for widening, relocating or laying out streets in Paris,
the administration may include the whole of each lot affected,
whenever it shall consider that the residue will not be of such size or
shape as to allow the erection of wholesome constructions. It may
also include in the taking lots outside of the street lines, whenever it
is necessary to acquire them in order to discontinue former public
streets which have been deemed useless. The portions of lots which
have been taken outside of street lines and which are not capable of
receiving wholesome constructions shall be united to the adjoining
properties either by agreement or by the taking of those properties.”
In order to include in the taking any portion of a lot outside of the
street lines, it is necessary, whenever this is practicable, that it
should be included in the plan submitted to the preliminary inquiry;
and in all cases such proposed takings must be shown on the
detailed plan submitted to the second inquiry above referred to, and
if the owners opposed the taking, and since 1876, even in the
absence of opposition, the decree which determines the limits of
such takings is rendered, not by the prefect, as in the case of the
property included in the street lines, but by the council of State.
The provisions of law for uniting these portions of lots acquired
outside of the street lines to the adjoining properties contemplate a
careful appraisal of such portion, to determine its value to the
adjoining owner under all the circumstances of the case, the offering
of it to such owner at the appraisal value; and if he fails to accept
the offer within a week from its receipt, the administration may
proceed to take his property for the purpose of uniting the remnant
to it, and then reselling the whole.
The provisions of this decree of March, 1852, originally passed for
Paris only, have since been applied to most of the important cities of
France.
Attention should be called to the fact that under the provisions of
the law of April 13, 1850, all the land within fixed limits may be
taken whenever required in order to abate a nuisance, or in the
interest of works for the improvement of the public health, and the
surplus, after completion of the works, sold at public auction.
It is stated, however, that in comparison with the law of March,
1852, that of April 13, 1850, has been rarely applied.
The law of Sept. 16, 1807, contains provisions for the assessment
of betterments, according to which private property which has
received a marked increase in value from the opening of new streets
or squares, the construction of quais and other public works, may be
assessed a betterment to the amount of one-half of such increase in
value; but this can only be done by an order of the head of the
State, passed in State council.
The amount of the tax is determined by a special commission
formed for the purpose.
The power to assess such tax seems rarely to have been
employed; it is said that not more than twenty instances of its
exercise can be found in all France from the passage of the law up
to 1886; and, although formerly applied in some instances to cases
of street improvements in cities, it seems for the last fifty years, or
since the enactment of March, 1852, above referred to, to have been
employed only in cases where the special benefit was of an
exceptional character, as when arising from the construction of
levees, dikes or a series of quais.
House Doc. No. 1096, Supplemental Report pp. 4-10

The effect of these provisions and of those of the French law,
which place all administrative matters under the control of the
administrative courts of which the Council of State is the highest,
and remove them from the jurisdiction of the regular courts, is to
make the Council of State practically the sole judge of the extent to
which these powers should be exercised, and of the size of the
remnants which may be taken, and hence the extent to which such
takings may be made under the law is almost entirely dependent on
the attitude of the Council of State.
There appears to be no question that at present, and indeed for
many years past, substantially since the establishment of the present
Republic, the attitude of the Council of State has been to limit as far
as possible the application of the law which authorizes the taking of
such remnants, and to permit any owner who desired to retain the
ownership of the remnant of his estate to do so, provided it were in
any way possible to erect on such remnant a building which would
comply with the requirements of the building law regarding light and
air.
This attitude appears to be taken through solicitude for the wishes
of the individual owner, and to a theoretical assumption that, as
takings by eminent domain are in derogation of common right, they
should be restricted, as far as possible, and is doubtless due in large
measure to the reaction from the former régime, when private and
personal rights were subordinated to the wishes of the
administrative government.
The contrast between the position now taken by the Council of
State regarding these matters and that taken under the empire may
be gathered from a comparison of the size of the remnants the
taking of which was formerly authorized by the Council of State, and
of those the taking of which it now refuses to authorize.
In 1896 and 1897 there was constructed that portion of the Rue
Reaumur connecting the Place de la Bourse with the Boulevard
Sebastopol, which lies between the Place de la Bourse and the Rue
St. Denis. Although the actual taking of the land occurred in 1894-
95, shortly before the construction, the decree which authorized the
taking and determined its limits had been made thirty years before,
viz., in August, 1864, under the second empire, and that decree
authorized the taking of remnants as large, in some instances, as
5,000 square feet in area.
These remnants were resold for building lots, and in some cases
the remnant, which had been taken as being too small to allow the
erection of a wholesome building thereon, was divided into two lots,
each of which was sold by itself for a building lot.
In contrast with this somewhat extralegal method of procedure,
should be set the following example of the present application of the
law.
The city of Paris has lately, in connection with the development of
the land formerly occupied by the Trousseau Hospital, found it
necessary to construct some new streets, the laying out of which left
certain remnants of estates which the city desired authority to take.
In this case the Council of State refused to approve the taking of
those remnants whose area exceeded 650 square feet, while it
authorized the taking of those whose area was less than this.
These two instances may fairly be considered as typical of the
difference between the former régime, under which the takings in
connection with street improvements were often made without
regard to the fact that the law only authorized the taking of those
remnants which were unsuited for building purposes, and the
present régime, where the application of that law is so limited as, in
the opinion of some, to defeat in certain cases the purpose for which
it was enacted, viz., to ensure that all the lots abutting on the new
street should be suited to the erection of proper buildings.
It is important to note that in the case last mentioned (that of the
Hospital Trousseau), the request of the city for authority to take
those remnants which the Council of State declined to authorize it to
take did not appear to have been made for the purpose of securing
the profit from the resale of those remnants; nor was the request
refused because it was thought to have been so prompted.
That purpose was neither avowed by the representatives of the
city, nor would it be inferred from examination of the plan, nor were
the members of the Council of State inclined to attribute it to the city
or to its representatives.
The difference between the city and the Council of State was
rather one of opinion as to the size of the remnant which should or
should not be deemed suitable for building, the Council being
inclined to place the limit of size lower than were the officials of the
city; and it seemed probable that were an opportunity offered to the
officials of the city to present their views on this matter before the
Council of State, which is not done under the present practice, the
standard desired by the city might be adopted.
However this may be, and it would seem that in certain cases at
least the limit of the size of a remnant which an owner should be
permitted to retain had been placed too low, there appears to be no
doubt as to the general consensus of opinion today among those
most conversant with such matters in Paris, whether members of the
city administration or of the Council of State, that extended takings
of land outside of the lines of proposed new streets solely for the
purpose of securing for the city the profit from the resale of the land
so acquired are neither proper nor desirable.
The increased initial expense involved in such takings was an
important reason given for this opinion, and the uncertain length of
time required for the disposal of the property another. The taking of
remnants properly so called, that is, of such residues of lots as were
by themselves unsuited for building purposes, was not considered as
open either to these or to the other objections urged against the
taking of land solely for the purpose of resale.
The increased expense caused by taking such remnants was,
especially where the land had been built upon, but slight.
In any event the land taken for the street had to be paid for, and
where part of a building was taken the city was invariably obliged to
pay for the whole, the damages to the tenants were the same
practically whether the whole estate or only a part was taken, and
thus the sole difference in expense between taking the whole estate
or leaving a remnant was the difference between the value of the
remnant at the time of taking and the damages caused it by the
taking for the street, which must be paid if the remnant was not
taken, and this difference was not great.
Furthermore, such remnants were found to be readily salable, the
adjoining owner almost always being desirous of securing the
frontage they afforded on the new street and ready to purchase
them at a fair price, which more than compensated for the increased
cost of taking them; so that only in rare instances had it been
necessary to have recourse to the power of taking the adjoining
estate for the purpose of completing a remnant.
It seems clear that much of the effort which Paris has made to
reduce the expense of street improvements by taking additional land
in the hope of profiting by its resale has been due to the lack of a
satisfactory betterment law, and now that the attitude of the Council
of State is opposed to further takings simply for the purpose of
resale the attention of the municipal authorities is more and more
directed to securing a satisfactory method for the assessment and
collection of betterments.
The present attitude of the Council of State as to permitting the
taking of land outside the limits of the street simply for the purpose
of profiting by its resale has had a marked effect on the proposals
made to the city for the completion of the Boulevard Haussmann, to
which reference is so often made.
Until the fact that the Council of State would no longer permit
extended takings for the purpose of profiting by the resale of the
land so acquired was generally understood, the proposals made to
the city contemplated that in addition to the 88,888 square feet
required for the street it should take abutting estates of 99,457
square feet in area, the whole at an expense of $10,000,000, for
which the city would have become liable in the hope that it might
recoup itself by the revenue to be derived from long leases of the
surplus land and from its resale at the expiration of those leases.
The city was either to advance the bulk of the money required for
the new buildings to be erected on those lots or to permit them to
be mortgaged for that purpose.
If the expected rents were realized during the period anticipated,
the burden on the city would have been little or nothing, while if
they were not, the city might have been obliged to bear the burden
of the interest and sinking fund charges on the whole $10,000,000,
and those on the mortgage also.
It being now recognized that such a taking will not be permitted,
the latest proposition made to the city was to the effect that the
owners of the most important of the abutting estates were prepared
to give to the city 50,783 square feet of the land required for the
street, considerably more than one-half, provided the city would
build the street, pay the damages to their tenants and release them
from any betterment assessment.
The expense to the city was thus reduced from $10,000,000 to
about $4,000,000 (the tenants’ damages in each case being
estimated at about $2,000,000), and though all expectation of profit
except from increased receipts of taxes was abandoned, this
material reduction rendered it much more possible for the city to
undertake the work; and were an assessment of betterments to be
made on those estates which did not contribute to the street the
expense could be further reduced.
In what has been said above, the present and the past attitude of
the authorities of Paris, and of the Council of State, toward takings
of land outside the limits of proposed new streets solely for the
purpose of securing the profit from the resale of such land has been
considered; but it must not be inferred therefrom that the only
purpose for which extended takings of land have been made in Paris
in connection with street improvements has been that of securing
the profit from the resale of the land taken.
There are many cases where such takings have been made in
whole or in part for the purpose of improving the sanitary conditions
in the area taken, and where the best method of securing such
improvement was by the razing of every structure in the area to be
improved and the rebuilding of that area according to modern
requirements.
Only actual acquaintance with the conditions which obtain in some
of the more ancient quarters of the cities of the Continent can give
an adequate idea of how essential such improvement was and in
many cases still is, and how impossible of attainment it is by any
method short of the total destruction of all the buildings within such
area.
The same holds true frequently of small groups of buildings on the
line of or in the neighborhood of a projected street improvement.
Where such a case presents itself, the Council of State does not
hesitate today to authorize the taking of all the land and buildings in
the area to be improved or of the groups of buildings, the demolition
of which is required for sanitary reasons, and of the land on which
they stand. While in such cases whatever is realized from the sale of
such land goes in reduction of the cost of the improvement, the
taking of the land is not primarily made for the purpose of effecting
that saving, though it would be natural for the authorities, wherever
such a saving had been made, to lay stress upon the fact as
justifying the method adopted.
In considering the extended takings which have been made in
European cities it is important in each case to ascertain whether or
not the considerations which prompted the taking of more land than
was apparently required for the proposed new streets did not relate
primarily to the remedying of unsanitary conditions, as the
opportunity which their laws afford of combining in one taking lands
required for street purposes and those taken to remedy conditions
inimical to public health is often availed of, and in such cases the
actual importance of the sanitary considerations does not always
clearly appear on the record.
excess taking in brussels, House Doc. No. 1096, pp. 10-16
In Belgium since 1867 cities have been permitted to take land by
zones, as it is termed, either for the purpose of improving sanitary
conditions or of improving the appearance of the city, and some of
the most notable instances of the exercise of this power are found in
Brussels, to satisfy whose needs the law was originally passed.
No limit is fixed by the law for the extent of these zones, and the
city is not restricted to taking land within a certain distance of the
new highway, as is the case in the Swiss and Italian laws for
instance, but may take whatever seems advisable in order to
accomplish the purposes for which the taking is made; but, again,
the city is not permitted to be the sole judge of how extensive a
taking shall be made.
After the city authorities have adopted the plan, the matter is
submitted to the Council of the Province, which makes a separate
examination of the question by an independent commission, and
after both the city and provincial authorities have approved the plan,
a royal decree, generally rendered on the report of the Ministers of
Public Works and of the Interior, is necessary to authorize the taking.
It is evident that in the Belgian law two matters are united which
with us have usually been kept entirely distinct, viz., takings in the
interest of public health and takings for public improvement, in the
sense of improving the appearance of the city; and a brief statement
of the conditions which obtained in Brussels forty years ago will
show how this naturally came to pass. (See pp. 122 ff. of this
volume.)
So far from Brussels having concluded by reason of her trying

experience that the taking of land by zones was an error, it is stated
by those in authority that since she has had authority to take land in
this way she has employed no other method; but, as has already
been stated, it would appear that the objects she has in view in her
takings, viz., the improvement not only of her highways but of the
appearance and sanitary conditions of the city, can be attained in no
other way.
Other cities of Belgium, notably Liege, have also employed this
method of taking by zones, and, acting under wiser guidance or
more favorable conditions, have succeeded in carrying out their
improvements without having to pass through the period of “storm
and stress” which Brussels experienced, and in the case of Liege
especially certain improvements carried out by this method have
shown a substantial profit.
It is of interest to note in this connection that the power of taking
land by zones conferred on the cities of Belgium is not possessed by
the State, one reason for this distinction being that the approval of
the Provincial Government required in the case of takings by cities
affords a check against the abuse of this power which would be
lacking in the case of the State.
As a result of this situation, the State has requested the city of
Brussels to make such takings on a large scale in the vicinity of the
new central railway station which the State is about to build in
Brussels, and has made a contract with the city under which the
State agrees to advance the money necessary for the operation and
to assume the risk of any loss resulting therefrom.
I am informed that Belgium has no law for the assessment of
betterments.
Note as to Certain Differences Regarding Damages in Case of Takings by Eminent
Domain
In France in the case of takings by right of eminent domain the
damages are assessed by a jury, in Belgium, by the judges.
In France it is not the practice to receive the testimony of experts
regarding the value of the land.
(It is said that in the last thirty years there has been but one case
in Paris in which such testimony was given.)
In Belgium such testimony in the form of written reports is
customarily received.
In both countries the awards for damages to land and buildings, i.
e., the damages awarded to the owner, are considered by the city
authorities to be somewhat in excess of the market value, but not
greatly so.
The law of each country gives damages to tenants in addition to
the value of the land and buildings, and permits such damages to be
given for loss of goodwill, business or custom consequent on being
obliged to move to another locality.
It is in connection with the awards of damages for this latter class
of injury that complaint as to excessive awards is made, it being
considered that the juries in the one country and the judges in the
other are more likely to err or be misled regarding the damages
claimed for loss of business or custom than as to those which relate
to the value of land or buildings.
INDEX
Acquisition of Land by Municipalities:

burden on tax payers, 22;
by gift, dedication, or devise, 3, 4;
by municipality, limitations of, in United States, 1-2, 14-15;
equitable distribution of cost, 1, 22-51;
methods of, 1;
purchase by cities, 13-17;
right to, 1;
tax payers protected, 17
Administrative Agencies and Planning, 168-208
Advertising: condemnation costs, 25
Advertising Signs: New York court decision on, 151-152
Amendments to State Constitution:
of New York, 248-249;
of Mass., 278;
of Ohio, 280;
of Wisconsin, 279
Appraisers’ Hearings: granted by court in Minneapolis, 27-28
Art Commission: in Greater New York, 184
Art Jury: power of, in Philadelphia, 184-185
Assessment Board:
determines area for special benefit, 90-91;
regulation in New York, 90
Assessment of Benefit: practice of, in Massachusetts, 85
Assessments:
by jury, in Kansas City, 71-72;
committee appointed in Massachusetts in 1658, 58, 60;
court decision in Ohio, 62-64;
exemption of, for parks, 62;
expense of street openings borne by city, 87-88;
first special law in United States, 58;
general practice of, 86-87;
Greater New York parks, 67-68;
Kansas City, 70;
King’s Highway, 91;
laws in Massachusetts, 64-65;
legislation for, in different states by dates, 59-60;
methods of, for street widenings in New York City, 87-88;
New York law of 1691, 58;
park lands, 60;
Pennsylvania laws of 1700, 58-59;
policy of figuring by front foot, 57;
prior to 1902 in New York City, 87-88;
relative taxation on park property for, 61;
unfair features of, in Boston, 97-98
Assessors: appointment of, in Minneapolis, to determine tax, 68-69
Attorney General vs. Henry B. Williams, 1899: 174 Mass. 476, 219-
221
Awards of Commissions: in condemnation cases, reform needed in
cases of, 51
Baltimore: topographical survey commission in, 182
Belgium:
law for excess taking in, 122-125;
street system in Brussels, 122-125
Bill-boards, 161-165;
dangers from, 164;
decisions, 246-248;
increase fire hazards, 164;
legislation for, 19;
license fee discrimination, 162-163;
Missouri provisions to regulate, 162-165;
opposition to ordinance regulating, 163;
regulations for, as nuisances, 164;
St. Louis ordinance for, 165;
temporary character of, 165
Board of Survey: act declared unconstitutional in Boston in 1902,
89-90
Boards of Health:
jurisdiction of, for nuisances, 154-155;
Massachusetts, practice of, 154-155
Bonds:
for land acquirement, 52-55;
issue of, for land payments, 52-55;
provided by legislature, 52-53
Borrowing Money: limit to city’s power, in Milwaukee, 53
Boston:
area of special benefit in, 90;
assessment law unfair, 97-98;
attitude toward survey board in, 179;
benefits of single council in, 189;
board of survey appointed in 1891, 89;
board of survey in 1891, 177-179;
borrowing plan in, 195;
condemnation proceedings in, 36;
decision against board of survey in, 89-90;
exception to special assessment rule, 96;
height of buildings on Copley Square, 18, 19;
one-way streets, success of, 204;
proceedings for street improvements in, 37-38;
special assessments prior to 1891, 89;
street commissioners’ awards, 37-38;
street commissioners in, 36-38;
survey act unconstitutional in 1902, 89-90;
unsuitable land remnants after condemnation proceedings in,
104
Boulevard Property: restrictions governing, 17-21
Boulevards:
King’s Highway law in St. Louis, 90-91;
Missouri ordinance to regulate industries on, 158-160
Building Codes: regulation of, in large cities of United States, 143-
144
Building Heights: Massachusetts acts, 218-219
Building Limitations, police power, 140-149
Building Lines:
designated in streets, 204;
establishing boulevards, 211
Building Regulations:
city of Köln, Germany, an example, 145;
for dwellings, 149-150;
German illustration of, 145-146;
in Washington, D. C., 142;
limitations on height and size, 140-150;
New York decisions for, 142;
ordinances for, 140-144;
restrictions for community benefit, 138-140;
type of control of, 138-140
Brooklyn: Furman Street, 17 Wendell 649. 1836, 243-244
Building Restrictions:
community benefits from, 138-140;
excess taking and, 136-137
Buildings in Parks: not true economy, 6
Bureau of Surveys: Philadelphia district surveyors, 176-177
Bureaus: scope of, in Greater New York, 180-181
California:
findings of commission in, 94-95;
pueblo lands in, 16;
state codes of, 40
Central Park:
assessment on land benefited by, 65;
creation of, in 1853, 65;
land cost of, 65;
ratio of increase of land value of, 66-67
Charleston, South Carolina: city hall on park site, 7
Chicago:
acquisition of school house sites, 42;
appreciation of lots, 7-8;
commission on street improvements, 39-40;
Randolph Street taking, 29, 40;
settlements for condemnation in, 42
City as Trustee, 4
City Government: unit idea in, 186-188
City Ownership of Land: public purpose, 3
City Planning:
administrative agencies in, 168-208;
advantages of unit idea, 188;
commission appointed, in Seattle, in 1910, 196-197;
controversies over civic centers, 8;
councilmen and wards, 186;
departments created in Pennsylvania and New Jersey, 1911,
190;
disregard of expert suggestions in, 185;
functions of commission for, 198-208;
future improvements considered, 203-206;
necessity for correlation in, 200-202;
ownership by municipality essential to, 1;
police power in, 138-167;
politicians’ methods, 186;
protection needed for, 7;
relation of improvements to whole plan in, 201-202;
special boards required for, 183;
taste and economy in, 6;
various methods in, 168-169
City Purchases of Land: supreme court decision on, 54
Civic Center Bonds: sale of, in East Denver, 77-78
Cleveland:
city charter, 299;
hearings by jury, in condemnation cases, 41-42;
condemnation procedure, regulated by state law, 41
Commissioners:
appointment of condemnation in St. Louis, 33;
duties of park, in Kansas City, 69;
duties of park, in Indianapolis, 78-83;
report on parks in Denver, 74
Commissions:
on city plan, limitations of, cited, 200;
mayor as ex-officio chairman in cities, 199;
summary of, in cities, 197-198
Common Law Jury: opinions concerning findings by, 48-49
Community Rights: scope of, in Germany, 2
Compensation:
legislation for, 18-21;
method of ascertaining, 48;
method of New York constitutional amendment, 48;
ordinance governing in Milwaukee, 25-26;
commissioners’ salaries in St. Louis, 33
Condemnation of Land:
act of Virginia assembly in 1906, 110;
advantages of preliminary tribunal in, 49-50;
advertising expenses in, 25;
appeals from findings, in Milwaukee, 39,
in Minneapolis, 45;
assessment of benefits in, 84-102;
compensation by jury, 24;
compensation for, in New York City, 43-44;
Connecticut acts of, 110-111;
constitutional clauses affecting, 23;
cost of, in London, 126-133;
court decisions in Kansas City, 45-46;
direct method in Oregon, 30;
disadvantages of, to municipality, 104;
English and continental systems, reports from, 308-321;
estimation of cost in London, 130;
excess, 103-137, 268;
expenses of, in New York City, 44;
findings by jury in Cleveland, Ohio, 41-42;
for Denver parks, 75;
French system, reports from, 321-330, 333;
in Belgium, 331-334;
jury findings in Pennsylvania, 93-94;
jury proceedings in France, 120-122;
jury verdicts in Portland, Oregon, 93;
law in Kansas City, 70-73;
legal expenses of, 25;
legislation in Ohio and Maryland, 110;
new act, in Indianapolis, 47;
Ohio laws for, 62;
opinion of Archibald R. Watson, 44-45;
parallel of, in Philadelphia and Portland, 35;
park and playground property, 18-19;
parks acquired by, 8;
payment of compensation, 23-31;
Pennsylvania acts of, 111;
Pennsylvania jury findings in, 93;
procedure in Portland, 35;
proceedings in Boston, 36;
proceedings in San Francisco, 43;
protection cited in Fourteenth Amendment, 23;
Randolph Street, Chicago, 29, 40;
relation of special assessments to awards for, 92;
settlements for, in Chicago, 42;
superior court cases in Indiana, 81;
uncertainty of jury findings in, 49
Conflagration Risks: height limitations for buildings, 140-149
Congestion Committee: appointment of, in New York, 14
Connecticut:
condemnation acts of, 110-111;
special acts, 296-298
Contract Method: advantages of, for land payments, 55-56
Copley Square, Boston:
restricting height of buildings on, 18, 19.
See also Height Limitations
Correlation:
Mayor’s cabinet in Kansas City an experiment in, 187;
value in city planning, 200-202
Cost of Land Acquisition: distribution of, 1, 52-102
Councilmen and Wards: as affecting city planning, 186
Damages in Condemnation Cases:

findings of jury in Kansas City, 95;
hearings on, in Minneapolis, 27-28;
jury appeals in St. Louis, 28;
objections to rules of, 93-94
Delaware Park, Buffalo: encroachments upon, 7
Denver, Colorado:
appraisers in, 32;
bonds for land cost in, 75;
four park districts in, 73;
land condemnation for parks, 75;
municipal art commissions in, 200;
notice and hearing proceedings in, 28-29;
park commissioners’ report, 74
Denver Park System:
extension of civic center, 32;
findings of appraisers in, 32
Distribution of Cost of Land Acquirement, 1, 52-102
District of Columbia: highway restrictions in, 18
Districts:
creation of park, in Indianapolis, 78;
principle of separating in Los Angeles, 155
Dwellings: building regulations for, 149-150
East Denver Park District:

appraisers’ report on land damages, 77;
ordinance of condemnation passed, 76-77;
report of park commissioners, 76;
sale of “civic center bonds,” 77-78;
subdivision of districts, 76
Economy:
and good taste in planning, 6;
buildings in parks and commons not, 6, 7
Edwards vs. Bruorton: 184 Mass. 529, 245-246
Eminent Domain:
assessors in Washington, 85-86.
See also Condemnation
Esthetic Developments: restrictions for promoting, 19-21
Excess Condemnation: 103-137, 268;
adaptability of principles in United States, 116-117;
difficulties of, in United States, 133-135;
financial results in France, 118-122;
financial value of, in United States, 117-118;
history of, in United States, 106-111;
physical value of, 133-135;
relief of, to tax payers, 103-106;
substitute for, in America, 105-106.
See also Condemnation
Excess Taking:
amendments for, in Massachusetts, 114-115;
amendments for, in Ohio, 114;
amendments for, in Wisconsin, 114, 116;
causes of failure in London, 131-132;
constitutional amendments versus court decisions in, 116;
constitutionality in Wisconsin, 116;
constitutionality of, 112;
constitutionality of, doubted, 114-116;
control over remnants in, 134-135;
court decision against, in Philadelphia, 112;
investigation of, by London county council, 128-132;
law for, in Belgium, 122-125;
New York amendments for, 114-115;
relative increase of property values, 125;
restrictions in, 136-137;
revenue from remnant sale in France, 119-122;
state amendments to, 114-116;
supreme court decision on, in Massachusetts, 112-114
Exemptions: from special assessment, in takings for parks, 61
Field Columbian Museum: decision in case of, 10-12

Fire Hazard: increased by bill-boards, 164
Fire Risks: ordinances which regulate, 141-143, 148-149
Fourteenth Amendment: protection against condemnation, 23
France:
condemnation proceedings in, 120-122;
excess condemnation in, 118-122;
remnant appropriation, 119;
revenue from sale of
remnants in, 119-122
French Council: remnant taking, 121-122
German Cities: community rights of, 2

Germany:
building regulations in, 145-146;
town planning and municipal ownership, 1
Grant Park: and Field Museum, 11-12
Height and Size of Buildings: limitations and restrictions in, 140-150

Height Limitations:
absolute, 242-243;
conflagration risks, 140-149;
court decision on, 19;
German versus American regulations for, 145;
Massachusetts act of 1898, 18;
Massachusetts court decision on, 147-148;
Massachusetts statute for, 146-147;
ordinances governing, 140-144
Highways:
boards of survey for, 171-180;
cost to owners, 171;
restrictions in District of Columbia, 18
House of Representatives: 61st Congress, 1910, 213-218
Housing Experiments: lending land for, 17
Housing Problems: causes which contribute to, 139-140
Improvement Costs: tax payers’ relief from, 56

Incomes: derived from lease of municipally owned land, 7
Indiana: acts of, 212
Indianapolis:
advantages derived from park board, 82-83;
duties of boards of public works and park commissioners in, 46;
four park districts created in, 78;
land takings under new act in, 47;
park commission in, 37;
park commissioners’ duties in, 78-83;
park law of, 254-267;
real estate experts as advisory committees, 82
Indianapolis Park Commission: character of, 37
Industrial Districts: ordinance for, in Los Angeles, 155-156
Industrial Occupations: regulations governing, 154-157
Instalment Plan: method of purchase in Minnesota and Wisconsin,
53-55
Jury Decisions:
in condemnation, 24;
land damage, 24
Jury Findings: uncertainty of, in condemnation, 49
Kansas City:
assessment on land benefited in, 64;
assessments by jury, 71-72;
assessments within city limits, 70;
correlation and Mayor’s cabinet, 187;
division of, into park districts, 69-73;
findings of jury for damages in, 95;
juries not demanded by corporations, 46, 70;
law in condemnation proceedings, 70-73;
municipal court on land takings in, 45-46;
park commissioners’ duties in, 69;
park system in, 72-73;
rights of corporations in, 28;
special assessments, 72;
Swope Park appropriations in, 73
Kansas City vs. Bacon et al.: 157 Mo. 450, 250-254
King’s Highway:
assessment provision for, 91;
instance of excess condemnation, 130-131
Köln System: building regulations, 145-149
Land Acquisition, 22-51;

condemnation and assessment, 248-254;
considerations in, 1;
issue of bonds for, 52-55;
payment for, by cities, 52-57;
special assessments for, 83-102
Land Benefits: Kansas City assessments, 64
Land Cost: excessive, 22, 23
Land Damages:
findings by juries, 24;
report on East Denver, 77
Land Dedicated in Fee. See under Minnesota, Ohio, and other states
and cities
Land Encroachments: regulations for, 150-152
Land for Specific Purposes: abandonment of original plan, 5
Land Loans: housing experiment, 17
Land Payments: instalment plan in Wisconsin and Minnesota, 55
Land Purchase: Wisconsin and Minnesota method of, 53
Land Restrictions: governing boulevards, 17-21
Land Values: increase in Central Park, 66-67
Legislation:
esthetic considerations, 19;
bill-boards, 19;
restrictions on use of land, 211
Legislative Authority: limitations of, in benefit districts, for special
assessments, 91
License: bill-board fees, 162-163
London:
causes of failure of excess taking in, 131-132;
excess taking investigation in, 128-132;
financial results in, 125-133;
land-taking cost in, 126-133;
metropolitan board of works in, 125-133;
notable opinions regarding recoupment in excess taking, 129;
report of county council, 130
London County Council: policy of, 128-132
Los Angeles:
council ordinance in, 26-27;
ordinance for residence and industrial districts, 155-157
Louisiana: state codes of, affecting condemnation procedure, 40
Maryland:
acts of, 1910, 298-299;
laws of 1908, 269-271
Massachusetts:
act governing height of buildings, 18;
acts of 1898, 218-219;
acts of 1904, 221-223;
acts of 1905, 223-226;
acts of 1907, 280-282;
acts of 1912, 267-268;
acts of 1913, 283-284;
assessment committee appointed in 1658, 58, 60;
assessment of benefit in, 85;
constitutional amendment allowing excess taking of land in,
278;
height limitation decisions, 147-148;
laws for assessments in, 64-65;
limitations on height of buildings in, 146-147;
practice of metropolitan park commission, 65;
remnant act in, 107-111;
revised laws, 213;
supreme court decision on remnants, 112-114;
various planning commissions in, 193-195
Metropolitan Board of Works: operations of, in London, 125-133
Metropolitan Improvement: borrowing plan, in Boston, 195
Metropolitan Park Commission: practice of, in Massachusetts, 65
Milwaukee:
area of special benefit in, 90;
bond issue for improvements in, 53;
borrowing method, for improvements, 53-56;
instalment plan of purchase, 53-55;
jury appeals for land taking in, 39;
ordinance governing compensation, 25-26;
street opening, docket entries in, 26
Minneapolis:
special assessments for parks in, 68-69;
findings in street cases in, 94;
instalment plan of purchase, 53-55;
park commissioners on damages in, 27-28;
percentage of appeals for land takings in, 45
Minnesota: land dedicated in fee, 10
Missouri: boulevards and industries, 158-160
Mistakes of Cities: sacrificing city owned real estate, 6
Municipal Art Commissions:
in Greater New York, 184;
powers of commission, for Denver, 200.
See also Art Jury; City Planning
Municipal Board: factor in real estate market, 3
Municipal Investments: financial policy of, 56
Municipality: public revenue used for, 3
Municipal Ownership:
in Germany, 1-2;
limitations in United States, 1
Municipal Regulations: industrial districts restricted by, 158-160
Municipal Waste: prevention of, by finance commissions, 17
New Jersey:
city planning department created in 1911, 190;
laws of, 1913, 294-296
New York:
acts of 1911, 249-250;
assessment law of 1691, 58;
building regulations decisions, 142;
congestion committee, 14;
cost of school house sites, 16;
court decisions on advertising signs, 151-152;
laws of 1913, 284-290;
nature of amendment for excess taking in, 115;
planning commissions appointed in 1913, 190-191;
proposed amendment to constitution, 279;
provisions of amendment for excess taking, 114-115;
regulation of assessing boards needed, 90
New York City:
appointment of commissioners for land taking, 43-44;
land taking expenses, 44;
legislation of 1911 for park land in, 68;
policy of assessment boards prior to 1902, 87-88;
school house sites, 15, 16;
simple method of ascertaining compensation by, 48;
special assessment collection in, 96
New York, Greater:
art commission, 184;
decision providing for assessment of parks in, 67-68;
topographical bureau in, 180-181
Notice and Hearing:
delays of, in Denver, Colorado, 28-29;
proceedings in Denver, 28-29;
property owners’ rights, 25
Nuisances:
boards of health and, 154-155;
district regulations for, 154-157;
municipal regulations for, 152-165;
regulation for bill-boards, 164
Ohio:
acts of 1904, 268;
amendments for excess taking in, 114;
amendment to constitution, 280;
condemnation laws of cities in, 62;
land dedicated in fee, 10;
legislation for condemnation, 110
Oregon State Code:
condemnation proceedings, 30;
determination of damages, 30
Ownership of Land: public, 1-21
Park Boards: duties of, in Indianapolis, 46

Park Commission: in Indianapolis, 37
Park Districts:
in Denver, 73;
local tax on, 61;
treated as separate entities, 69
Park Purposes: use of land for, cases cited, 8-12
Parks:
acquired by condemnation, 8;
acquiring titles in Greater New York, 67;
appreciation of contiguous property, 61;
assessments in acquiring land for, 60;
cost of Central, 65;
district subdivision in East Denver, 76;
districts in Kansas City, 69-73;
Indianapolis law, 254-267;
land dedicated in fee, 10;
legislation in New York City, 68;
Minneapolis assessments for, 68;
prohibition of bill-boards near, 162;
property exempt from tax in United States, 61;
separate districts as entities, 69;
sign disfigurement of, 151-152;
system in Kansas City, 72-73
Parks and Boulevards: state decisions, on objectionable occupations
near, 166
Parks and Playgrounds:
condemnation of private property for, 18-19;
reservation of, for city needs, 205
Park Boards: advantages of, in Indianapolis, 82-83
Pennsylvania:
acts of, 1907, 272-275;
assessment law of, 1700, 58-59;
city planning department created in 1911, 190;
condemnation acts of, 111;
condemnation by jury, 93;

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Susana Nuccetelli is professor of philosophy at St. Cloud State University in Minnesota.

Gary Seay and Susana Nuccetelli

About the Authors

Part I Bioethics and Moral Theory

Chapter 2 Philosophical Accounts of Morality

Part II Theoretical and Methodological Issues in Bioethics

Chapter 4 Managing Patient Information

Chapter 5 Consent with Competence and Without

Part III Moral Issues at the End of Life

Chapter 6 Death and Dying

Chapter 7 When Life Supports Are Futile or Refused

Chapter 8 Medically Assisted Death

Chapter 9 End-of-Life Measures for Severely Compromised Newborns

Part IV Moral Issues at the Beginning of Life

Chapter 10 Personhood in the Abortion Debate

Chapter 11 Abortion in the Typical Case

Chapter 12 Abortion in the Hard Cases

Chapter 13 Conflicts of Rights at Life’s Beginning

Part V The Biotechnological Revolution

Part VI Medicine and Society

Chapter 16 Biomedical Research on Animals

Chapter 17 Biomedical Research on Humans

Chapter 18 Justice in Health Care

Appendix A: The Tools of Ethical Inquiry

About the Authors

Part I Bioethics and Moral Theory

Chapter 2 Philosophical Accounts of Morality

Chapter 3 Principle-Oriented and Case-Oriented Bioethics

Chapter 4 Managing Patient Information

Chapter 5 Consent with Competence and Without

Part III Moral Issues at the End of Life

Chapter 6 Death and Dying

Chapter 7 When Life Supports Are Futile or Refused

Chapter 8 Medically Assisted Death

Chapter 9 End-of-Life Measures for Severely Compromised Newborns

Part IV Moral Issues at the Beginning of Life

Chapter 11 Abortion in the Typical Case

Chapter 12 Abortion in the Hard Cases

Chapter 13 Conflicts of Rights at Life’s Beginning

Part V The Biotechnological Revolution

Chapter 15 Human Genetic Engineering

Part VI Medicine and Society

Chapter 17 Biomedical Research on Humans

Chapter 18 Justice in Health Care

Appendix A: The Tools of Ethical Inquiry

AMA American Medical Association

Bioethics and Moral Theory

In reading this chapter you will

► Identify the historical roots of contemporary bioethics in the development of Western