Law Commons^™

Can There Be A Progressive Bioethics?, Richard O. Lempert

Book Chapters

Progressive bioethics-the words are not an oxymoron. Far from it; they are more redundant than oppositional. Yet they leave me almost as uneasy, as if they were contradictory. My unease exists because bioethics should be neither progressive nor regressive, neither right wing nor left wing, neither liberal nor conservative. It should be just good, sound ethics applied to the often difficult moral problems posed by present-day medicine and the genomic revolution.

I do not mean to suggest by this that all bioethicists need agree. Respectable ethicists using established modes of ethical analysis have long disagreed on and argued for different …

Thou Good And Faithful Servant, Carl E. Schneider

Articles

Lawmakers are stewards of social resources. A current debate-over screening newborns for genetic disorders-illuminates dilemmas of that stewardship that have particularly plagued bioethics. Recently in the Report, Mary Ann Baily and Thomas Murray told the story of little Ben Haygood. He died from MCADD, a genetic disorder that can make long fasting fatal. Screening at birth would have let doctors alert Ben's parents. "After Ben died," Baily and Murray wrote, "his father became a passionate advocate for expanding Mississippi's newborn screening program to add MCADD and other disorders." Soon, the Ben Haygood Comprehensive Newborn Screening Act increased the number …

Principal Investigator Views Of The Irb System, Simon N. Whitney, Kirsten Alcser, Carl E. Schneider, Laurence B. Mccullough, Amy L. Mcguire, Robert J. Volk

Articles

We undertook a qualitative e-mail survey of federally-funded principal investigators of their views of the US human subjects protection system, intended to identify the range of investigator attitudes. This was an exploratory study with a 14% response rate. Twenty-eight principal investigators responded; their comments were analyzed to show underlying themes, which are here presented along with supporting quotations. There was consensus that it is important to protect human subjects from research abuse, but disagreement over how well the IRB system is functioning. Some researchers felt that the system is effective and serves its purpose well. Of those who support the …

Private Ordering And Intimate Spaces: Why The Ability To Negotiate Is Non-Negotiable, Michele Goodwin

Michigan Law Review

This review moves beyond a critique of Cherry's study to incorporate a radical new way of thinking about organ commodification as a social justice issue. Part I provides a brief empirical overview of organ demand in the United States, offering an alternative perspective and introducing data illexamined in commodification debates. Part II challenges the notion that private ordering abandons liberal and egalitarian values in favor of individualism over communitarianism. It also acknowledges the limitations of private ordering and addresses how its more problematic features, including the abuse of power, might be avoided. Part III argues for a hybrid system that …

Drugged, Carl E. Schneider

Articles

The Supreme Court's recent decision in Gonzales v. Oregon, like its decision last year in Gonzales v. Raich (the "medical marijuana" case), again raises questions about the bioethical consequences of the Controlled Substances Act. When, in 1970, Congress passed that act, it placed problematic drugs in one of five "schedules," and it authorized the U.S. attorney general to add or subtract drugs from the schedules. Drugs in schedule II have both a medical use and a high potential for abuse. Doctors may prescribe such drugs if they "obtain from the Attorney General a registration issued in accordance with the …

After Autonomy, Carl E. Schneider

Articles

Bioethicists today are like Bolsheviks on the death of Lenin. They have, rather to their surprise, won the day. Their principle of autonomy is dogma. Their era of charismatic leadership is over. Their work of Weberian rationalization, of institutionalizing principle and party, has begun. The liturgy is reverently recited, but the vitality of Lenin's "What Is To Be Done?" has yielded to the vacuity of Stalin's "The Foundations of Leninism." Effort once lavished on expounding ideology is now devoted to establishing associations, organizing degree programs, installing bioethicist commissars in every hospital, and staffing IRB soviets. Not-so-secret police prowl the libraries …

Hard Cases And The Politics Of Righteousness, Carl E. Schneider

Articles

The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present abnormal …

Reaching Disclosure, Carl E. Schneider

Articles

It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method-requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insists that researchers warn subjects of the risks of experiments. The Patient Self-Determination Act compels medical institutions to remind patients about advance directives. The federal government's new privacy regulations instruct medical institutions to describe their privacy regime to patients. Not just the law of bioethics, but health law …

Liability For Life, Carl E. Schneider

Articles

Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April29, 1997, Dr. Klavan tried to kill himsel£ He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan …

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Benumbed, Carl E. Schneider

Articles

I originally intended to write a column on tort liability and research ethics, and I still plan to do so. But this column is a cri de coeur as I finish another semester teaching law and bioethics. This year, I asked with growing frequency, urgency, and exasperation, "Must law's reverence for autonomy squeeze out the impulse to kindness? Where is the beneficence in bioethics?" These questions assail me every term. Why? Consider Steele v. Hamilton County Community Mental Health Board. Mr. Steele was involuntarily "hospitalized after his family reported that he was 'seeing things and trying to fight imaginary …

Border Patrol, Carl E. Schneider

Articles

Recently, the Supreme Court has encountered cases that concern perhaps our weightiest bioethical issue-how medical care is to be rationed. But this does not mean that the Court must therefore assess the justice of rationing, as many people incited by many journalists now fondly and firmly believe. In explaining why, we begin with a story about how Learned Hand remembered saying one day to Justice Holmes, "Well, sir, goodbye. Do justice!" Holmes turned quite sharply and said: "That is not my job. My job is to play the game according to the rules." If the Court doesn't do justice, what …

How Underlying Patient Beliefs Can Affect Physician-Patient Communicaion About Prostate-Specific Antigen Testing, Michael H. Farrell, Margaret Ann Murphy, Carl E. Schneider

Articles

Routine cancer screening with prostate-specific antigen (PSA) is controversial, and practice guidelines recommend that men be counseled about its risks and benefits. OBJECTIVE. To evaluate the process of decision making as men react to and use information after PSA counseling. DESIGN. Written surveys and semistructured qualitative interviews before and after a neutral PSA counseling intervention. PARTICIPANTS. Men 40 to 65 years of age in southeastern Michigan were recruited until thematic saturation—that is, the point at which no new themes emerged in interviews (n = 40). RESULTS. In a paper survey, 37 of 40 participants (93%) said that they interpreted the …

Gang Aft Agley, Carl E. Schneider

Articles

In my last contribution to this column (HCR, July-August 2000), I argued that the law of bioethics has repeatedly failed to achieve the hopes cherished for it. I presented evidence, for example, that most doctors breach the duty of informed consent, that advance directives do not direct patients' care, and that repeated legal attempts to increase organ donation have failed to find the success predicted for them. I closed that column by promising to try to explain this chastening experience. It would, of course, take a lifetime of columns to capture all the reasons the law of bioethics …

The Best-Laid Plans, Carl E. Schneider

Articles

It is natural to suppose law is like the centurion and can do as it will: "I say to this man, Go, and he goeth; and to another, Come, and he cometh; and to my servant, Do this, and he doeth it." But a thousand years ago, King Canute tried to disillusion his courtiers about his efficacy by commanding the waves to stop beating. And fifty years ago, Harry Truman predicted of Dwight Eisenhower, "He'll sit here, and he'll say, 'Do this! Do that!' And nothing will happen. Poor Ike-it won't be a bit like the Army. He'll find it …

Concluding Thoughts: Bioethics In The Language Of The Law, Carl E. Schneider

Book Chapters

What happens when the language of the law becomes a vulgar tongue? What happens, more particularly, when parties to bioethical disputes are obliged to borrow in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings? How suited are the habits and tastes and thus the language of the judicial magistrate to the political, and more particularly, the bioethical, questions of our time? We must ask these questions because, as the incomparable Tocqueville foresaw, it has become American practice to resolve political—and moral—questions into judicial questions. We now reverently refer to the Supreme Court as the great …

Information, Decisions, And The Limits Of Informed Consent, Carl E. Scheider, Michael H. Farrell

Book Chapters

For many years, the heart's wish of bioethics has been to confide medical decisions to patients and not to doctors. The favoured key to doing so has been the doctrine of informed consent. The theory of and hopes for that doctrine are well captured in the influential case of Caterbury v. Spence: '[t]rue consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knoledgeably the options available and the risks attendant upon each'.

Regulating Doctors, Carl E. Schneider

Articles

Alawyer today can hardly speak to a doctor--or even be treated by one-without being assailed by lawyer jokes. These jokes go well beyond good-humored badinage and pass the line into venom and gall. They reflect, I think, the sense many doctors today have that they are embattled and endangered, cruelly subject to pervasive and perverse controls. This is puzzling, almost to the point of mystery. Doctors have long been the American profession with the greatest social prestige, the greatest wealth, and the greatest control over its work. Indeed, what other profession has been as all-conquering? One may need to go …

Rights Discourse And Neonatal Euthanasia, Carl Schneider

Book Chapters

At the heart of our difficulty in approaching neonatal euthanasia lie the intractable questions it raises: What is human life? When is death preferable to life? What do parents owe their children? What does society owe the suffering? Those moral questions could hardly be more perplexing, yet they are further complicated when they must be resolved not informally and case by case, but through generally applicable social rules. This is so for numerous reasons. For instance, the wide range of deeply held opinions about neonatal euthanasia makes rules hard to formulate, and the wide range of factual situations in which …

Testing Testing, Carl E. Schneider

Articles

Last year, Congress passed the Ryan White Care Act Amendments of 1996. The amendments authorize ten million dollars for each fiscal year from 1996 through 2000 for counseling pregnant women on HIV disease, for "outreach efforts to pregnant women at high risk of HN who are not currently receiving prenatal care," and for voluntary testing for pregnant women. The amendments compromise a central question: whether prenatal and neonatal AIDS testing should be compelled. The compromise is complex. The director of the Centers for Disease Control and Prevention is instructed to establish a system for states to use to discover and …

Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider

Articles

As I write, the Supreme Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy …

From Consumer Choice To Consumer Welfare, Carl E. Schneider

Articles

In trying to understand the I SUPPORT study, it may be useful to think of contemporary bioethics reform in terms of the principles of consumer protection. The central tendency of that reform (particularly in my own field-the law) has been to employ the model of consumer choice. That model sets as its purpose to allow consumers to choose the kinds of products they prefer. It seeks to accomplish that purpose primarily by supplying consumers the information they need to make choices and by insisting that they are given what they chose. Thus, for example, merchants may be required to reveal …

Bioethics In The Language Of The Law, Carl E. Schneider

Articles

What happens when the language of the law becomes a vulgar tongue? What happens, more particularly, when parties to bioethical discourse are obliged to borrow in their daily controversies the ideas, and even the language, peculiar to judicial proceedings? How suited are the habits, taste, and language of the judicial magistrate to the political, and more particularly, the bioethical, questions of our time? We ask these questions because, as the incomparable Tocqueville foresaw, Americans today truly do resolve political-and moral--questions into judicial questions. As Abraham Lincoln hoped, the Constitution "has become the political religion of the nation," and many Americans …

Bioethics And The Family: The Cautionary View From Family Law, Carl E. Schneider

Articles

For many years, the field of bioethics has been specially concerned with how the authority to make medical decisions should be allocated between doctor and patient. Today the patient's power-indeed, the patient's right-is widely acknowledged, at least in principle. But this development can hardly be the last word in our thinking about how medical decisions should be made. For one thing, sometimes patients cannot speak for themselves. For another, patients· make medical decisions in contexts that significantly include more participants than just the patient and doctor. Now, as this conference demonstrates, bioethics is beginning to ask what role the patient's …

Rights Discourse And Neonatal Euthanasia, Carl E. Schneider

Articles

Hard cases, they say, make bad law. Hard cases, we know, can also make revealing law. Hard cases identify the problems we have not found a way of solving. They reveal ways the law's goals conflict. They force us to articulate our assumptions and to examine our modes of discourse and reasoning. If there was ever a hard case for the law, it is the question of whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally or severely damaged physically to die. For many years, the law has not had to …