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c h a p t e r s i x Bioethics and Society From the Ivory Tower to the State House d a v i d o r e n t l i c h e r , m.d., j.d. Controversies in bioethics routinely land in legislatures, before governors and presidents, or in court. The question whether to withdraw artificial nutrition and hydration from Terri Schiavo was an extreme example—it generated statutes by the Florida legislature and by Congress, intervention by Governor Jeb Bush and President George Bush, and more than a dozen opinions by state and federal courts between 2000 and 2005.1 But many other bioethical dilemmas also capture the attention of government. Cases involving abortion,2 the withdrawal of life-sustaining treatment (Meisel and Cerminara, 2004), drug testing of pregnant women,3 denial of health care on grounds of medical futility,4 and disputes over frozen embryos5 pepper the judicial landscape. Similarly, Congress and state legislatures regularly pass laws regulating end-of-life care,6 reproductive decisions,7 and other matters in bioethics , including access to care,8 genetic testing,9 and public health practices (Gostin 2000). Lawmakers can have a profound e¤ect on the evolution of issues in medical ethics. President Bush’s decision to limit federal funding for embryonic stem cell research slowed the progress of medical discovery in the United States (Stolberg 2002), Congress’s enactment of Medicare increased the percentage of older Americans with health care insurance from about 50 percent to nearly 100 percent (Moon 2001), and the Supreme Court’s decision in Roe v. Wade gave every American woman the freedom to terminate her pregnancy before viability. Because lawmakers greatly shape the outcome of dilemmas in bioethics, it is important for bioethicists to become active in the legal process. As judges decide cases, governors or presidents implement policies, and legislatures pass laws, they may adopt rules that raise serious moral concerns. When the Florida legislature and Congress ventured into the Terri Schiavo case, they enacted legislation that did not reflect good bioethical analysis (and that was also unconstitutional).10 Bioethicists can particularly influence the law through legislatures. Whereas courts must wait for disputes to come before them, legislators can anticipate problems and develop laws to prevent or limit harm. A bioethicist can persuade legislators to take up an issue and respond to it in a morally desirable way. In addition , the legislative process is typically more open to public input than is a judicial proceeding or the policy making of a president or governor. Finally, in the absence of constitutional constraints, legislatures can override decisions by courts or executive branch oªcials. Thus, when the Illinois Supreme Court erected unduly stringent procedural safeguards for withdrawing artificial nutrition and hydration, bioethicists could work with the Illinois legislature to adopt more reasonable guidelines (Hall et al. 2003, 542). Bioethicists can extend their involvement in the legislative process by becoming legislators. I have had the privilege of doing so. First elected in November 2002 to the Indiana House of Representatives, I write this piece in my third year in oªce, almost midway through my second two-year term. Like most state legislatures , the Indiana General Assembly operates on a part-time basis, so I also continue, at reduced time, as a professor at the Indiana University Schools of Law and Medicine. As a legislator, I have come to a better understanding of the contributions that bioethicists can make in the legislative process. sharing expertise on important issues Legislatures regularly grapple with issues on which bioethicists can bring their expertise to bear. With Medicaid costs rising rapidly and state budgets being squeezed, access to—and rationing of—health care are key concerns. In states across the country, legislators have had to reduce Medicaid funding and then choose among cutting back on the range of health services covered, decreasing the number of indigent persons eligible for Medicaid coverage, or implementing both kinds of reductions (see Dewan 2005, A8). Devising a just system for rationing health care requires diªcult choices, and bioethicists can help ensure that the choices take account of all the relevant moral considerations. Legislators address many other issues in bioethics as well. As scientists probe into promising but ethically controversial areas like stem cell research or genetic b i o e t h i c s a n d s o c i e t y 75 technology, legislators entertain proposals for regulation that must...


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