Public bioethics and the Bush presidency.

• Author: Snead, O. Carter

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.

1. 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)

2. 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...