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Article Excerpt
INTRODUCTION
I. THE BUSH ADMINISTRATION'S APPROACH TO PUBLIC BIOETHICS: GROUNDING GOODS A. The Fundamental Equality of All Human Beings B. Pursuit and Application of Biomedical Knowledge for the Common Good II. IMPLEMENTATION OF THE GROUNDING GOODS A. Embryonic Stem Cell Research and Related Issues 1. Executive Actions 2. Legislative Actions 3. Bully Pulpit and the Pedagogical Authority of the Presidency B. Abortion 1. Executive Directives, Administrative Agency Actions, and Foreign Policy 2. Promoting, Shaping, and Blocking Legislation 3. Shaping the Judiciary 4. Invoking the Pedagogical Authority of the Presidency C. Conscience Protections for Health Care Providers 1. Executive Actions 2. Legislative Actions D. End-of-Life Matters 1. Executive Actions 2. Legislative Actions III. ASSESSING THE BUSH ADMINISTRATION A. Harnessing the Tools of the Executive Branch B. The Problem of Metrics C. The Metric of the Procedural Values of Liberalism D. The Metric of Substantive Disagreement E. Judgment According to Bush's Own Principles CONCLUSION
INTRODUCTION
"Bioethics" emerged in America as a field of scholarly reflection in the 1960s. (1) The field concerns itself with fundamental questions, including what it means to be human, the nature and value of human life (and death), the ends of medicine, and the purpose of science. It began with a series of conferences convened to discuss the tensions between the humanistic and scientific dimensions of medical practice wrought by extraordinary advances in biomedical science and biotechnology. (2) Shortly thereafter, several centers were founded to explore bioethical questions in a sustained and rigorous way. (3) As with many of the most compelling and contentious matters of moral concern, bioethics also captured the attention of those charged with making and enforcing the law at both the federal and state levels. In the same years that scholars were turning to these questions at conferences and in academic centers, Congressmen and Senators were holding hearings of their own. (4) This constellation of governmental activity marked the birth of a new branch of bioethics--public bioethics--concerned with the governance of medicine, science, and biotechnology in the name of ethical goods. Since its emergence in American law, public bioethics has been a permanent fixture in the halls of government and the public square. Issues such as abortion, embryo research, assisted reproduction, end of life matters, genetic screening and engineering, organ transplantation, human cloning, and the relationship between mind, brain, and behavior, have proliferated as political questions and quite often, by extension, legal matters. These issues are now routinely the subject of both political campaigns and concrete actions by the political branches of government.
Public bioethics figured prominently during the tenure of President George W. Bush. This Article explores the Bush legacy in this domain. It begins by articulating and examining the grounding norms of President Bush's approach to public bioethics. Next, it analyzes how these norms were applied to concrete areas of concern. Building on this analysis, the next section reflects on what the President's actions illustrate about the capacity of the Executive Branch to shape public bioethics. The Article concludes with a brief discussion of the possible metrics by which the Bush Administration's efforts might be judged, and then offers several assessments according to the various standards identified.
I. THE BUSH ADMINISTRATION'S APPROACH TO PUBLIC BIOETHICS: GROUNDING GOODS
A. The Fundamental Equality of All Human Beings
In justifying the bioethics policy of the Administration, President Bush repeatedly and unambiguously cited one particular grounding good: respect for the intrinsic and fundamental equality of all human beings. (5) Indeed, this was arguably the most commonly invoked normative principle during his tenure in office (though many have and will continue to object vigorously to how he defined the substance and scope of human equality, as well as the means he employed to pursue it). (6) In his first inaugural address, President Bush appealed to a robust notion of equality to defend his domestic agenda (particularly regarding the problem of poverty): "The grandest of [our Nation's] ideals is an unfolding American promise that everyone belongs, that everyone deserves a chance, that no insignificant person was ever born." (7) The intrinsic equality and worth of every human being was also the stated norm underlying the President's Malaria Initiative (PMI), begun in 2005 to ameliorate and ultimately eradicate the disease in Africa. On Malaria Awareness Day in 2007, President Bush described the program as rooted in the notion that "[e]very life matters to the American people. Every life is precious." (8) Similarly, President Bush has defended the President's Emergency Plan for AIDS Relief (PEPFAR), meant to fight the global AIDS pandemic in Africa and the Caribbean. Upon signing the Tom Lantos and Henry Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, President Bush noted that "[w]ith this legislation, America is showing its tremendous regard for the dignity and worth of every human being." (9) Indeed, President Bush invoked the intrinsic equality of every human being as the primary justification for his highly controversial approach to promoting freedom and fighting tyranny around the globe (including in Afghanistan and Iraq):
From the day of our founding, we have proclaimed that every man and woman on this Earth has rights and dignity and matchless value, because they bear the image of the Maker of heaven and Earth. Across the generations, we have proclaimed the imperative of self-government, because no one is fit to be a master and no one deserves to be a slave.... So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world. (10)
The most distinctive feature of President Bush's conception of human equality was its unconditional and uncontingent nature. According to this view, all human beings are equal in value simply by virtue of their membership in the species; because of who they are as members of the human family. It is intrinsic to every human being irrespective of his age, size, location, race, sex, usefulness (or burdensomeness) to others, possession or lack of certain favored physical or mental capacities, or the worth assigned to him by others. (11) President Bush conceived of equality as a pre-political attribute of the human being; the state can neither confer nor negate it. (12)
President Bush implicitly rejected the notion that an individual's moral status (and the attendant protections that it entails) waxes and wanes according to the judgment of others, in light of physical, mental, or circumstantial criteria that such others might establish. (13) He regarded this competing approach as standing the equality principle on its head--privileging the claims of the strong over those of the weak. He believed that this principle of contingent personhood would produce monstrous practical results--including, for example, a sliding scale of moral and legal standing for people based on their cognitive ability, usefulness, strength, and so on. In this way, President Bush's approach appears to have taken its bearings from Hans Jonas's injunction that "utter helplessness demands utter protection." (14) And he said many times that the fundamental purpose of government is to protect the weak from the strong. (15)
As will be discussed in detail below, the key concrete ethical entailment of this conception of basic human equality for biomedical research is that no human subject (regardless of his age, size, or circumstance) shall be intentionally instrumentalized or destroyed for the benefit of others. (16) For the practice of medicine, this principle of equality entitles patients to care and concern regardless of their condition of dependency or disability, and precludes the withholding or withdrawal of care (or, for that matter, active killing) based on others' judgments that such a life is not worth living. Also, this particular vision of equality grants all health care providers, without discrimination, the right to pursue their vocations without being compelled to act against their consciences.
B. Pursuit and Application of Biomedical Knowledge for the Common Good
The Bush Administration asserted that its second animating good for bioethics policy (to be pursued within the ethical boundaries defined by the conception of equality laid out above) was a robust commitment to supporting biomedical research, aimed ultimately at the alleviation of human suffering as well as the humane and competent medical practice that it augmented. (17)
II. IMPLEMENTATION OF THE GROUNDING GOODS
The narrative of the Bush Administration's approach to public bioethics can largely be described as an effort to find the proper relationship between its two grounding principles--profound respect for the fundamental equality of every human being and vigorous support for biomedical research and the healing arts. The search for a fitting balance between these competing goods unfolded in a variety of public bioethical contexts, most notably in the debates over embryonic stem cell research (and related questions, such as human cloning), end of life matters, abortion, and conscience protections for healthcare providers.
The governance of biomedical research and medical practice in the name of ethical goods can take many forms. The public bioethics spectrum includes a vast array of governmental activity, including (from most permissive to least permissive types of interventions): formal endorsement and support (typically in the form of federal funding), silent permission (the default rule in the face of governmental inaction), permission with surveillance (such as reporting requirements), permission with conditions (such as licensure and certification), and outright criminal bans. The executive branch of the federal government has manifold tools at its disposal to implement a public bioethics agenda, including the issuance of executive directives (such as executive memoranda or orders), the operation of administrative agencies, the legislative process (where the President can shape, promote, or block relevant bills), appointments to the judiciary, and the use of the unparalleled bully pulpit of the presidency. The Bush Administration deployed all of these mechanisms in pursuing its bioethics agenda.
A. Embryonic Stem Cell Research and Related Issues
The moral, legal, and public policy dispute over embryonic stem cell research (and related matters, such as human cloning) is the most prominent issue in public bioethics of the past decade. Since the derivation of human embryonic stem cells in 1998 at the University of Wisconsin, (18) the issue has been debated and discussed by scholars, politicians, members of the popular media, and the public at large. It has been a recurring issue in political campaigns and the activities of the political branches of government at the state and federal level. Without question, it is the defining issue for President Bush's contribution to public bioethics.
The primary question raised by the practice of embryonic stem cell research is whether it is morally defensible to disaggregate (and thus destroy) living human embryos in order to derive pluripotent cells for purposes of basic research that may someday yield regenerative therapies. (19) The embryos used in this kind of research are typically donated by individuals or couples who conceived them by in vitro fertilization (IVF) in the context of receiving assisted reproduction treatment, but who no longer need or want them for such a purpose. There are reports of some researchers creating embryos by IVF solely for use (and destruction) in research. (20) Theoretically, embryos for use in stem cell research could also be created by somatic cell nuclear transfer (that is, human cloning for biomedical research, or so-called "therapeutic cloning"), though efforts to derive pluripotent cells from cloned human embryos have not yet succeeded. (21) The scientific aspirations for embryonic stem cell research are manifold, including the goals of understanding the mechanisms of early human development, testing and developing pharmaceuticals, and ultimately devising new regenerative therapies. According to prominent researchers in this field, realizing these aspirations will require the creation of a bank of embryonic stem cell lines large enough to be sufficiently diverse both for the creation of models to study all relevant diseases or injuries that might admit of regenerative cell-based therapy, and for purposes of immunocompatibility (should such therapies be developed). This program will thus require the use and destruction of millions of human embryos. Given the scarcity of donated IVF embryos for this purpose, (22) creating embryos by IVF or cloning solely for the sake of research is a necessity. (23)
The moral permissibility of embryonic stem cell research depends ultimately on the status of the human embryo that is necessarily destroyed in this process. In resolving this question, President Bush appealed both to his radical conception of human equality and the findings of modern embryology. The relevant science confirmed that the five- to six-day-old human embryo used and destroyed in stem cell research is a complete, living, self-directing, integrated, whole individual (24) member of the human species, who, given the proper environment, will (if all goes well) move itself along the trajectory of human biological development from embryo, to fetus, to neonate, to child, to adolescent, to adult. (25) The biological status of embryos as human organisms did not, however, settle the question of their moral status. For this judgment, President Bush reflected on the notion of human equality as a principle of classical liberalism underlying the nation's founding. He concluded that the only coherent (non-self-destroying) understanding of human equality is one that encompasses all human beings without discrimination on the basis of accidental characteristics such as age, size, condition of dependency or vulnerability, circumstances, or the esteem of others. Accordingly, President Bush concluded that the intentional use and destruction of embryos in stem cell research is gravely immoral and unjust. Furthermore, he took the position that the intentional creation of embryos (by IVF or cloning) for use and destruction in research is, a fortiori, morally unacceptable. (26)
In making this judgment, President Bush implicitly rejected the arguments of those who assert that the human embryo is not entitled to a high degree of moral respect because it lacks certain preferred capacities or characteristics. (27) This, in President Bush's mind, was tantamount to the most unjust and invidious kind of discrimination. He likewise rejected the more limited argument in favor of using and destroying donated embryos from fertility clinics because they are destined to be discarded and destroyed in any event. President Bush's understanding of equality dictated that living human beings should not be treated as raw materials to be exploited and destroyed for biomedical research purposes simply because someone else has made the decision that their lives were no longer useful and thus should be terminated. (28) And his devotion to the principle of radical equality and, in his words, respect for the "matchless worth" of every individual, led him to reject a straightforward utilitarian argument that assumed the personhood of the embryo, but nevertheless justified its use in research simply by virtue of the hoped-for lifesaving promise of the therapies that might emerge from it. (29)
Having explored the way in which President Bush applied his principle of radical equality to the ethical question of embryonic stem cell research as a general matter, let us examine the concrete actions he took as head of the executive branch in this regard.
1. Executive Actions
a. Presidential Directives and Agency Actions
One of the first major actions of the President's tenure was to set the federal policy for funding embryonic stem cell research. In fact, prior to September 11, 2001, this issue was the most hotly debated of his presidency. When President Bush took office, there was a nearly thirty year history of gridlock among the political branches on the question of federal funding for research entailing the destruction of embryos. At various periods, Congress would favor such funding, but the White House would not, and vice versa. (30) The practical result of the stalemate was that the federal government had never provided funding for research that depended on the destruction of human embryos. After much deliberation, President Bush announced his policy in the first televised address of his presidency on August 9, 2001. He spent the bulk of the address discussing the competing ethical goods, namely, respect for the equality of every human life, and the moral obligation to advance scientific knowledge aimed at the amelioration of human suffering wrought by debilitating injuries and dread diseases. He concluded that, although he strongly supported biomedical research aimed at these ends, he firmly held the view that such research must operate within the boundaries dictated by the ethical norm of respect for human equality. Accordingly, he authorized federal funding for all types of stem cell research that met these criteria and would not create incentives for the further destruction of human lives at the embryonic stage of development. Obviously, all forms of non-embryonic stem cell research would be eligible for funding under this plan, including so-called adult stem cell research (meaning pluripotent or multipotent cells derived from differentiated tissue, including bone marrow, umbilical cord blood, and the like). President Bush also authorized funding for embryonic stem cell research using cell lines that had been derived from embryos that had been destroyed prior to the announcement of the policy. He said that funding work using these lines would move the science forward without incentivizing future embryo destruction (given that no federal funding would be available for work on lines derived after August...
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