Law & Bioethics: From Values to Violence
14 Pages Posted: 13 Dec 2010 Last revised: 20 Feb 2014
Date Written: June 1, 2004
This article analyzes the problematic relationship of law to bioethics – in past, present, and future – and urges the importance of inductively studying what uses of law have yielded progress and which have failed. This article launches that project, systematizing the ways in which law has been deployed to address fourteen prominent problems, from the protection of human participants in research, to the use of reproductive technologies, to end-of-life care. The author argues the poverty of deductive approaches that claim law serves one grand value in these bioethics domains, be it trust or access to health care. The actual history of law and bioethics demonstrates the inadequacy of that approach..
Yet how law and bioethics interact is revealed not only by inductive analysis of key issues. The 40-year arc of the law/bioethics interaction begins with bioethics embracing law as shield for the most vulnerable, patients and research subjects. Bioethics early embraced the language and idea of patients’ rights and research subjects’ rights, in part in response to atrocities that motivated the founding of modern bioethics. Those atrocities included experimentation on concentration camp victims in World War II, the Tuskegee Syphilis Trials, and other flagrant abuses. The embrace of law as shield sprang as well from everyday failures to elicit patient consent and tailor care to patients’ wishes, including near death.
We now see a major change in the relationship of bioethics to law. The work of the President’s Council on Bioethics is emblematic of a shift in many quarters toward using law as sword not shield. The Council’s suggestion that key bioethics debates may be best resolved by criminalizing certain scientific research is an example. Another example is state criminalization of drug use in pregnancy, with no systematic study of whether this actually worsens child health outcomes by discouraging prenatal care, and no consideration of whether funding of therapeutic settings and options would better serve the health of children to be.
This article argues that this shift toward using law as sword to resolve bioethics problems, not shield, is highly problematic. More deeply, the author argues that the relationship of law to bioethics with continue to shift with the political winds until rigorous and historical analysis of the relationship between the two begins to anchor the use of law in this domain. The article suggests how to launch that analysis, through inductive evaluation of the law/bioethics relationship that recognizes what values and methods law offers bioethics and bioethics offers law.
Keywords: Bioethics, law and bioethics, pragmatism
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