During the past 25 years, a number of issues in health care law have illustrated an important paradox. As Tocqueville observed more than 150 years ago in his classic study of the United States, we regularly turn to the courts to resolve our political differences. Yet, many issues that seem to have been settled by the courts turn out not to be very settled. The continuing debates over abortion provide a prominent illustration. Decisions at the end of life offer important examples as well. Although courts have concluded that withdrawing life-sustaining treatment is the same as withholding such treatment and that withdrawing artificial nutrition and hydration is no different than withdrawing artificial ventilation, many people continue to hew to those distinctions.
Because critical issues may be judicially decided but publicly unsettled, health care law is very much a field of gaps - gaps between law on the books and law in practice, gaps between perceptions of law and its actual impact, and gaps between rhetoric and reality. As a result, developments in the law often outpace public sentiments and preferences. Perhaps these gaps are not surprising. Health care law deals with many difficult and controversial issues, issues that really can mean the difference between life and death. An important task for the next 25 years will be to understand better the nature of the gaps between health care law and the public’s views and to figure out how to bridge those gaps.