Judicial Decision Making and Biological Fact: Roe v. Wade and the Unresolved Question of Fetal Viability

Abstract

rT HE GROWING complexity of social issues inextricably bound up with moral and technical dimensions is producing a situation where traditional policy-making bodies appear impotent in resolving them. This failure is largely one of being unable to achieve a political consensus. These emerging issues are not amenable to conventional decision-making modes of bargaining and compromise and often reflect an either-or decision with little discretion for the policymaker. As a consequence, these pressing issues require a policy mechanism for making hard choices that politically are no-win situations. Despite the reluctance of the courts to enter this policy realm, increasingly they are being called upon to make final decisions on otherwise unresolvable public issues. Although there is little systematic analysis of the problems derived from entrance of the courts into areas that necessitate substantial techni-

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