In the surrealist world of bioethics philosophy, those with sufficient cognitive qualifications to achieve membership in the moral community are often called “persons.” Ironically, many bioethicists assert that persons may include “entities” that are not human. For example, animals are said by some bioethicists to qualify for personhood, which would give these beasts greater moral worth than some humans.
The influence of bioethics is pervasive. From their positions in the academy, in medical and bioethics think tanks, in law schools, and as editors of elite medical journals, financed by grants, honoraria, and book royalties, bioethicists are changing the very face of American health care. Here are just a few examples—a preview of coming attractions, if you will—of some of the topics I will detail later in these pages:
• Dr. Marcia Angell, editor of the New England Journal of Medicine, has editorialized that the definition of death be expanded to include a diagnosis of permanent unconsciousness or that other policies be implemented with the stated purpose of requiring that unconscious people be dehydrated to death—even if their families object.
• A peer reviewed article in the Lancet, one of the world’s most famous medical journals, took this idea one step further, opining that unconscious people should be lethally injected to allow their organs to be harvested. This is not an isolated notion. The idea of permitting disabled people to be killed for their organs is gaining steam among many members of the organ transplant community.
• Peter Singer, an internationally renowned philosopher from Australia with a worldwide following, has declared that parents should have twenty-eight days in which to decide whether to keep or kill their newborn children. Rather than becoming a pariah, as one would expect of an infanticide advocate, he was appointed to a prestigious, tenured professorship at Princeton University.
• Daniel Callahan, one of the country’s most influential bioethicists, has called for a harsh system of medical rationing in which research into the cures and causes of disease would be drastically reduced and health care resources diverted from medical treatment into public education programs intended to convince—and, if necessary, coerce—people into healthy lifestyles.
• Some bioethicists want to create a market for the sale and purchase of human organs. Others promote the creation of suicide clinics. A few have even proclaimed a “duty to die” upon reaching old age or becoming a financial or emotional burden.
That such discriminatory policies are ardently advocated in the world’s most respected medical and academic journals would be enough cause for alarm. But bioethics is about much more than intellectual theory. Many bioethics agenda items have already imbedded themselves into the bedrock of law.
The 1999 Montana Supreme Court’s decision in James H. Armstrong, MD v. The State of Montana is just one example. The state had passed a law requiring that only doctors perform abortions, which the court invalidated based on the Montana Constitution and Roe v. Wade. That should have been the extent of the decision. But rather than limit the ruling to the case at hand, a 6-2 majority decided to use the cultural flashpoint of abortion as a pretext for imposing a radical and audacious philosophical imperative on the people of Montana, unwarranted by specific facts of the case and unnecessary to its prudent adjudication. As a consequence, the ruling’s extraordinary legal implications extend far beyond abortion, opening a Pandora’s box of expansive litigation in Montana for years to come and threatening the right of Montana to effectively regulate the practice of medicine through the rule of law.
The scope of the majority ruling is almost unlimited: “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.” This is far more alarming than it may appear at first reading. As the two justices who objected to this aspect of the ruling, Karla M. Gray and Chief Justice J. A. Turnage, rightfully worried, the ruling’s broad breadth and radical scope strongly suggests that “the Legislature has no role at all in matters relating to health care to be provided to the people of Montana” and “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.”
If, indeed, almost anything goes medically in Montana, so long as a patient wants it and a health care professional is willing to do it—a reasonable interpretation considering the expansive language and philosophical thrust of the majority’s decision—then it could be construed to permit a doctor to amputate a patient’s healthy limbs upon request when the patient wants it removed to satisfy a neurotic obsession (a macabre surgery that has actually occurred in England); allow patients to ask doctors to kill them for organ donation purposes; permit infanticide of disabled infants at the request of caregivers or parents; or allow people to be experimented upon in dangerous ways that are currently illegal. Indeed, the court’s ruling is so broad, it decreed that only “a compelling interest . . . to preserve the safety, health and welfare of a particular class of patients or the general public from a medically-acknowledged bona fide health risk” warrants state involvement in medical decision making. In other words, regardless of the individual or societal consequences, absent extraordinary exigencies, such as preventing a plague, virtually anything may be allowable in Montana if it can be construed to involve obtaining “medical care from a chosen health care provider.” That’s an astonishing result from a little-noticed ruling overturning a law that would have simply required doctors to perform all abortions.
How did the court justify such an encompassing decision? Yes, the court looked to Roe v. Wade and a smattering of other cases. But the primary authorities that the majority decision relied upon for the broader context of its ruling were philosophical treatises. Indeed, the most frequently cited authority was not a statute, a law case, or even a legal essay but a philosophical discourse on the modern meaning of the “sanctity of human life” contained in a book—Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom—written by the attorney/bioethicist Ronald Dworkin in 1993. Dworkin’s thesis: A true adherence to the sanctity of life ethic requires that all be permitted to “decide for ourselves” about abortion and euthanasia and that such decisions be accepted by society and tolerated by those who disagree; otherwise society is “totalitarian.” The majority opinion cited Life’s Dominion so frequently and applied its reasoning so enthusiastically that the Ronald Dworkin’s philosophy may now be the court-mandated health care public policy of the entire state of Montana without a single vote even being cast—quite a triumph for a philosopher who is little known outside the world of the academy and another step down the road toward the new medicine of mainstream bioethics.
As this book will demonstrate, bioethicists and their allies are pushing the laws of the nation and the public discourse increasingly toward accepting killing and death as a legitimate answer to life’s difficulties. This is leading to a rising human toll:
• Oregon, which has legalized assisted suicide, decreed that the act is a form of “comfort care” that must be paid for by Medicaid; this in a state that denies some curative treatments under the state’s Medicaid health rationing scheme.
• Desired medical treatment is refused in hospitals and nursing homes around the country to patients who are dying or disabled, with the intent that the patients die. This abandonment is justified as ethical under a new theoretical construct known as futile care theory (FCT), which proclaims the right of doctors (and health care executives) to refuse wanted care based on their subjective views of the value of their patients’ lives.
• Doctors,