Public Bioethics and the Bush Presidency
Snead, O. Carter, Harvard Journal of Law & Public Policy
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
"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. …