Is Bioethics Ethical?

The Weekly Standard, 28 May, 2000.

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Decision making has been quietly co-opted by bioethics, a genre of philosophical discourse practiced by an elite group of academics, philosophers, lawyers, and physicians, many of whom are openly hostile to the sanctity of life and the Hippocratic traditions that most people still take for granted.

The case of James H. Armstrong, M.D. v. The State of Montana should have been merely a skirmish in the never-ending national struggle over abortion. Instead, relying on the reasoning of certain experts in the moral choices surrounding health care, the Montana Supreme Court issued in October 1999 a sweeping decision that could make huge changes in the way Montanans live and the way they die.

What happened in Montana is happening across the country, usually less dramatically but nonetheless steadily. The United States has a bad case of expertitis, and for many years we have been ceding to experts control over our public decisions. Now the most important questions about health care have been added to the list. Decision making has been quietly co-opted by bioethics, a genre of philosophical discourse practiced by an elite group of academics, philosophers, lawyers, and physicians, many of whom are openly hostile to the sanctity of life and the Hippocratic traditions that most people still take for granted.

Bioethicists spend much of their time arguing with one another, beneath or, more accurately, above the public radar, in arcane academic journals, books, university symposia, and government-appointed commissions. This is no empty intellectual enterprise, but a project aimed at changing America. In the course of their arguments, bioethicists are arriving at a consensus about the course of our medical future, and they are slowly succeeding at transforming the laws of public health and the ethics of clinical medicine in their own image.

At issue in the Montana case was a state law requiring that doctors (as opposed to physician-assistants) perform all abortions. This the court unanimously overturned; but it didn't stop there. Writing for a 6-2 majority, Justice James C. Nelson went on to impose a radical philosophical imperative on the people of Montana, unwarranted by the facts of the case and
unnecessary to its prudent adjudication. Indeed, Nelson's audacious opinion will be grist for litigation in Montana for many years to come.

Its essential holding is this: The Montana Constitution broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from government interference. As the two justices who objected to the scope of the ruling, Karla M. Gray and Chief Justice J.A. Turnage, warned, the Court's opinion sweeps so broadly as to encompass and decide such issues as the right to physician-assisted suicide and other important health and medical-related issues which simply were not litigated in this case.

Gray and Turnage's trepidation is abundantly warranted. If the ruling means that virtually anything goes medically in Montana so long as a patient requests it and a health care professional is willing to provide it, then patients can ask doctors to kill them for organ-donation purposes, parents or guardians can secure the killing of disabled infants, and people can volunteer to be experimented on in dangerous ways that are currently illegal, all this as a result not of a considered decision by the people of Montana but of a little-noticed ruling by the state supreme court.

As it happens, the Montana constitutional convention that created the state right to privacy in 1972 explicitly refused to include abortion and other medical issues in the privacy guarantee. So, to justify its ruling, the court looked to precedents like Roe v. Wade, the 1973 U.S. Supreme Court decision that legalized abortion nationwide. Even more than on case law, however, the Montana court relied on philosophical treatises. In particular, the authority it cited most frequently is the book Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993), by the attorney and bioethicist Ronald Dworkin.

Dworkin's thesis is that true adherence to a modern understanding of the sanctity-of-life ethic requires that all of us be permitted to decide for ourselves about abortion and euthanasia and that our decisions be accepted by society and tolerated by those who disagree. Otherwise society is totalitarian. The majority opinion in Armstrong cites Life's Dominion so many times and applies its reasoning so enthusiastically that Ronald Dworkin's philosophy may now be considered the court-mandated health care creed of the state of Montana.

Dworkin's triumph in Armstrong v. Montana illustrates the growing influence of bioethics. To become a bioethicist isn't hard. No tests have to be passed; practitioners are not licensed, like attorneys, physicians, real estate agents, and hairdressers; and, while more than 30 universities offer degrees in bioethics, there are no standards of excellence that generally apply. A Catholic priest may be a bioethicist, as may an atheist college professor. Health care professionals such as nurses and community ombudsmen may get appointed to hospital ethics committees, take a few training courses, and call themselves bioethicists. Indeed, I could say that I am a bioethicist, having written and lectured extensively on the ethics of assisted suicide and the withholding of medical treatment from dying and disabled people.

The mere designation, however, does not give one influence within the bioethics movement. That is to say, there is a very big difference between being a bioethicist and subscribing to the ideology of mainstream bioethics. It is the adherents of the ideology who matter and who hold a steadily increasing sway over the laws of public health, the application of medical ethics, and the protocols that govern hospital care.

This phenomenon is relatively new. It began about 30 years ago as an intellectual exchange among medical ethicists, philosophers, and theologians with widely varying views about how to resolve the dilemmas presented by the growth of technological medicine. In the early years, there was a robust contest for the heart and soul of the movement. Adherents of human equality and the sanctity of life, such as the late Paul Ramsey, were pitted against utilitarians who emphasize the quality of life, such as the late Joseph Fletcher, the patriarch of modern bioethics. Over the years, the Ramsey school made crucial contributions, most notably, helping promote the right to refuse unwanted medical treatment, but steadily lost influence. Today, mainstream bioethics is substantially homogeneous in outlook, and the primary differences among bioethicists concern the proper ways to apply generally agreed-upon values to health care policy and individual medical decisions. It is in this sense that bioethics has become an ideology, albeit one that not every bioethicist shares.

In order to have clout within the bioethics movement and seriously affect the discourse that is its hallmark, one must subscribe to its intellectual underpinnings. Pro-lifers have no influence, by definition, and those whose advocacy is rooted in religion are usually ignored. Mainstream bioethics reached a consensus long ago that religious values are divisive in a pluralistic society and thus have little place in the formulation of public policy. Those who believe in abortion rights but also hold that all born humans are equally endowed with moral worth, along with those who subscribe to the do no harm ethos of the Hippocratic oath, have little impact, since mainstream bioethics rejects Hippocratic medicine as paternalistic and shrugs off equal human moral worth as a relic of the West's religious past.

In mainstream bioethics, human beings per se have no special rights or moral value. The movement as a whole no longer thinks in that idiom. Instead, it overwhelmingly embraces a quality-of-life ethic that requires individual humans to earn their moral and legal rights by displaying certain cognitive capacities. This is usually described as achieving the status of a person. As we shall see, the criteria for personhood are still a matter of debate among bioethicists. But the notion that personhood rather than humanness is what counts in determining moral worth and legal rights is nearly universally accepted within the mainstream movement and has been taught in American universities and colleges to a whole generation of students. Bioethics ideology rejects person status for newborns, people with severe brain damage, and those with dementia, all of whom it regards as beings of lesser worth than those with more developed frontal lobes. There is serious debate within bioethics, however, whether to extend personhood to some animals (nonhuman animals, in bioethics parlance), even as it is being stripped from some humans.

Part of what makes this alarming is that the values and presumptions of bioethics ideology are not shared generally throughout society. Unlike adherents to this ideology, most people believe that being human in and of itself confers a special moral status. Most people view a newborn infant as having the same moral worth as all other humans and want their doctors to subscribe to the Hippocratic oath. This means that, as the government, the law, and organized medicine rely increasingly on expert bioethicists to supply the answers to public policy dilemmas in areas such as cloning, stem cell research, health care rationing, and organ procurement for transplantation, those answers are likely to be based on beliefs not generally shared by the people affected. More and more, public policies and medical protocols are likely to conflict with, rather than reflect, the values of the citizenry.

If bioethics ideology is out of step with mainstream American thinking, however, it is entirely consistent with the mindset of the elite. As Daniel Callahan, one of the movement's pioneers, wrote in the Hastings Center Report in 1993, the final factor of great importance in bioethics' success was the emergence ideologically of a form of bioethics that dovetailed nicely with the reigning political liberalism of the educated classes in America.

It is not surprising, then, that movement bioethicists have become among society's most powerful members or that their work affects American culture from top to bottom: They serve on federal and state public policy commissions. They write health legislation. They teach the next generation of doctors, lawyers, business executives, and government policy makers in our institutions of higher learning. They are paid by HMOs to consult on issues such as when desired medical treatment can be withheld or withdrawn unilaterally. They direct hospital and nursing-home ethics committees that make or influence decisions ranging from whether to withhold treatment from premature infants to whether to pull feeding tubes from stroke patients who are not dying. They testify as expert witnesses in court cases and submit friend of the court briefs in legal cases of major significance, thereby affecting the evolution of law. They serve on institutional review boards that oversee the ethics of medical experiments using human subjects. They help write protocols governing organ procurement. Occasionally, their work leads to startling lurches in the law, as in Montana. More typically, their advocacy erodes ethical standards and values slowly, as waves transform shorelines, through a succession of subtle changes in public policy and medical ethics, a process known within the movement as policy creep.

What makes this especially worrisome is that once a policy is formally adopted or embedded in law, it has the power to modify the beliefs of the people it affects. Thus, the patriarch, Joseph Fletcher, viewed the field expansively, as determining how we are to live and act, a wisdom he deemed specially appropriate to the medical sciences and medical arts. Some bioethicists see themselves as the creators of a new moral paradigm that will replace the archaic Judeo-Christian order as the philosophical underpinning of society.

To appreciate fully the mindset of bioethics and the consequences that will flow from its growing influence on public policy, one need only look to the journals in which its leading thinkers communicate with one another and with their colleagues in the trenches of American medicine in physicians' offices, on hospital ethics committees, at consultancies advising nursing homes where bioethics values affect everyday decisions. Two of the most prominent journals devoted exclusively to bioethics are the Hastings Center Report, a bimonthly published by the bioethics think tank the Hastings Center, of Garrison, New York, and the Kennedy Institute of Ethics Journal, a quarterly published by Georgetown University. Although not every article in these publications embraces bioethics ideology, the vast majority do. These journals channel the discussion in a definite direction.

The December 1999 issue of the Kennedy Institute of Ethics Journal is a case in point. It concentrates on the continuing debate over personhood. A person, the journal's introduction says, is someone morally considerable who is the subject of moral rights and merits moral protection. Most people would say that all human beings qualify. The authors of several articles disagree.

The lead author, John Harris, the Sir David Alliance professor of bioethics at the University of Manchester, in England, claims that it is necessary to establish the criteria for personhood so as to identify those sorts of individuals who have the ëhighest' moral value or importance. It is not life per se that is dispositive, but life of such quality as to bring [individuals] into the same moral categories as ourselves. Being human alone does not do the trick: Personhood theory creates castes of us and them, in an explicit hierarchy of human worth.

Harris makes a rather astonishing assertion, considering the brouhaha over abortion. He baldly states that human life begins at conception. This, of course, does not mean he opposes abortion to the contrary. Remember, it is not human life that matters in personhood theory; human beings do not deserve special status merely because of their species. Harris blandly denigrates unborn human life: The human embryo and fetus, he writes, in all stages of its development from conception to birth is no more interesting or complex than the embryos of other creatures and indeed no more interesting than the adult forms of other creatures, for example cats and canaries.

Harris next opines that the exploration of who is a person must include animals, because the exclusion of fauna from personhood deliberations would be arbitrary and an act of speciesism, a claim of superiority based on species, which Harris considers as disreputable as an assertion of superiority based on race, gender, nationality, religion, or any other nonmoral characteristic.

So, who (or what) should duly be deemed a person? To Harris, a person is a being that can value existence. This means persons might, in principle, be members of any species, or indeed machines. He explicitly states that fetuses and newborn infants are not persons, nor are people with significant cognitive disability or dementia.

The ultimate purpose of personhood analysis is to determine whom we can kill and still get a good night's sleep. Harris writes, "Persons who want to live are wronged by being killed. Nonpersons or potential persons cannot be wronged in this way because death does not deprive them of something they value. If they cannot wish to live, they cannot have that wish frustrated by being killed." So much for the moral wrongness of murdering newborns and throwing them into trash dumpsters.

In the same issue of the Kennedy Institute of Ethics Journal, Georgetown's Tom L. Beauchamp, co-author with James F. Childress of one of the most influential bioethics textbooks, Principles of Biomedical Ethics, also writes about personhood, taking a different route to essentially the same destination as Harris. Beauchamp asserts that the key to determining personhood is analyzing whether a being enjoys moral personhood, which he calls both a cognitive and moral-capacity criterion for possession of moral rights. He writes, "It is safe to assume that a creature is a moral person if (1) it is capable of making moral judgments about the rightness and wrongness of actions and (2) it has motives that can be judged morally."

Beauchamp, like Harris, asserts that under his theory, unprotected persons would presumably include fetuses, newborns, psychopaths, severely brain-damaged patients, and various demented patients. Beauchamp does not believe that moral personhood should be the sole basis for moral rights or that animals can be moral persons, but he does assert that humans who are not moral persons may be treated with the same levels of respect or exploitation as animals are now; some humans are equal or inferior in moral standing to some nonhumans. If this conclusion is defensible, he writes, we will need to rethink our traditional view that these unlucky humans cannot be treated in the ways we treat relevantly similar nonhumans. For example, they might be aggressively used as human research subjects and sources of organs. In other words, Beauchamp holds out the prospect that we may someday exploit living infants and cognitively disabled human beings as if they were mere natural resources.

The November-December 1999 Hastings Center Report focuses on the ethics of expanding organ procurement from non-heart-beating cadaver donors, that is, people who have died from cardiac arrest instead of brain death. Much of the discussion has to do with how long doctors should have to wait after a heart stops beating before judging the donor dead for purposes of organ procurement and still be in compliance with the dead donor rule, which requires that donors of vital and non-paired organs be dead before having their organs procured. (Many bioethicists want to discard the dead donor rule, to increase organ availability, but that argument is not made here.) Some organ centers currently wait only two minutes after the cessation of the heartbeat to procure organs; a recent bioethics panel recommended five minutes. The arguments are important, but arcane, and would take too long to explain here.

That said, the ultimately utilitarian approach of mainstream bioethics is much in evidence. John A. Robertson, holder of the Vinson Elkins chair at the University of Texas Law School, where he teaches criminal law, constitutional law, and bioethics, makes an audacious proposal. He notes that until and unless law and medical ethics discard the dead donor rule, as many bioethicists urge, it will be impossible to use such people as anencephalic infants (babies born with most of their brains missing) or unconscious people as vital-organ donors. Even with the dead donor rule in place, however, Robertson suggests that single kidneys and some other body tissues could be harvested from such people, who would not be directly harmed by such use.

Again, the proposal is to use cognitively disabled people as mere natural resources. One wonders whether the New Mexico woman who recently woke up after being unconscious for 16 years would have objected had she awakened to learn that one of her kidneys and her corneas had been taken from her on the theory that the loss of them could not harm her.

Like ruminating cows, bioethicists earnestly chew and rechew their ideas until they have explored every nuance, considered every implication, and the movers and shakers of the movement have achieved consensus about a particular approach. When that point comes, public policy often changes fast: Notice the speed with which removing feeding tubes from unconscious, cognitively disabled people became ethical and legal throughout the country once bioethicists agreed it was no different morally from withdrawing antibiotics.

If mainstream bioethicists tread gingerly in pushing their agenda into policy, it is for fear of a public backlash, provoked by what bioethicists jokingly call the yuck factor. For those of us who believe that bioethics is directing us down immoral and dangerous paths, this fear of the light offers the best hope of an antidote. Since it is almost surely too late to transform the movement's utilitarian assumptions from within, keeping the movement contained inside the academy appears to be the most promising strategy to prevent our society from being remade in bioethics' image. To do this will require heightened media scrutiny and public awareness of what ideological bioethics is, what it stands for, why it matters, and what consequences will befall us all if the new medicine becomes our future.

That is easier said than done, of course. But there are ways. The ideology could be engaged vigorously, from the grass roots to the academy to the halls of Congress. Philanthropists could be persuaded to endow academic chairs dedicated to exploring human equality as the basis for health care law and policy, much as bioethics chairs are used to promote the quality-of-life agenda. Politicians, devoted to their constituents' welfare, could resist the bioethics tide. Nonprofit groups could be formed to follow the bioethics movement, publish journals, engage the proponents in public debate, and alert the media to particularly noxious developments. The popular media, especially television and radio talk shows, could recognize the urgency of covering bioethics as seriously as they cover politics. After all, are not issues like personhood and the harvesting of organs from living people as compelling as tax policy and welfare reform?

Beyond the media, a counter-bioethics movement could be created by those who believe that the only truly moral way to resolve the dilemmas with which bioethics grapples is by strict adherence to universal human equality.

Perhaps this new, ethical bioethics could be called human-rights bioethics. It would boldly promote the proposition that there is no them and us; only us. Surely, an abundance of academics, physicians, lawyers, disability rights activists, patient advocates, theologians, and just plain people would be willing to stand up proudly for the equal moral worth of all living people. For now, their rallying cry could be: No more Montanas.