The Magazine

Is Bioethics Ethical?

Increasingly in America, key questions about life and death are being decided by vulgar utilitarians who call themselves ethicists

Apr 3, 2000, Vol. 5, No. 28 • By WESLEY J. SMITH
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The case of James H. Armstrong, M.D. v. The State of Montana should have been merely a skirmish in the never-ending national struggle over abortion. Instead, relying on the reasoning of certain "experts" in the moral choices surrounding health care, the Montana Supreme Court issued in October 1999 a sweeping decision that could make huge changes in the way Montanans live -- and the way they die.

What happened in Montana is happening across the country, usually less dramatically but nonetheless steadily. The United States has a bad case of "expertitis," and for many years we have been ceding to experts control over our public decisions. Now the most important questions about health care have been added to the list. Decision making has been quietly co-opted by "bioethics," a genre of philosophical discourse practiced by an elite group of academics, philosophers, lawyers, and physicians, many of whom are openly hostile to the sanctity of life and the Hippocratic traditions that most people still take for granted.

Bioethicists spend much of their time arguing with one another, beneath -- or, more accurately, above -- the public radar, in arcane academic journals, books, university symposia, and government-appointed commissions. This is no empty intellectual enterprise, but a project aimed at changing America. In the course of their arguments, bioethicists are arriving at a consensus about the course of our medical future, and they are slowly succeeding at transforming the laws of public health and the ethics of clinical medicine in their own image.

At issue in the Montana case was a state law requiring that doctors (as opposed to physician-assistants) perform all abortions. This the court unanimously overturned; but it didn't stop there. Writing for a 6-2 majority, Justice James C. Nelson went on to impose a radical philosophical imperative on the people of Montana, unwarranted by the facts of the case and unnecessary to its prudent adjudication. Indeed, Nelson's audacious opinion will be grist for litigation in Montana for many years to come.

Its essential holding is this: "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." As the two justices who objected to the scope of the ruling, Karla M. Gray and Chief Justice J. A. Turnage, warned, "the Court's opinion 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."

Gray and Turnage's trepidation is abundantly warranted. If the ruling means that virtually anything goes medically in Montana so long as a patient requests it and a health care professional is willing to provide it, then patients can ask doctors to kill them for organ-donation purposes, parents or guardians can secure the killing of disabled infants, and people can volunteer to be experimented on in dangerous ways that are currently illegal -- all this as a result not of a considered decision by the people of Montana but of a little-noticed ruling by the state supreme court.

As it happens, the Montana constitutional convention that created the state right to privacy in 1972 explicitly refused to include abortion and other medical issues in the privacy guarantee. So, to justify its ruling, the court looked to precedents like Roe v. Wade, the 1973 U.S. Supreme Court decision that legalized abortion nationwide. Even more than on case law, however, the Montana court relied on philosophical treatises. In particular, the authority it cited most frequently is the book Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993), by the attorney and bioethicist Ronald Dworkin.

Dworkin's thesis is that true adherence to a modern understanding of the sanctity-of-life ethic requires that all of us be permitted to "decide for ourselves" about abortion and euthanasia and that our decisions be accepted by society and tolerated by those who disagree. Otherwise society is "totalitarian." The majority opinion in Armstrong cites Life's Dominion so many times and applies its reasoning so enthusiastically that Ronald Dworkin's philosophy may now be considered the court-mandated health care creed of the state of Montana.