American Journal of Law & Medicine

Shifting paradigms in bioethics and health law: the rise of a new pragmatism.(Symposium Dedicated to Joseph "Jay" Healey)

Neither bioethics nor health law is old as an established discipline. Modern bioethics dates from the late 1960s or early 1970s.(1) Health law as a domain characterized by its own casebooks, courses, and specialists arguably began somewhat earlier.(2) While each has far older precursors,(3) the two fields have seen a modern resurgence in the last thirty years or so. Yet each in these three decades has been dominated by a certain method or paradigm.(4) In bioethics that has come to be known as "principlism," deductive reasoning from a limited set of middle-level ethical principles, albeit with some reciprocal attention to the implications of the case at hand for those principles.(5) No comparable term has emerged in health law, and the field has arguably been less enamored of philosophical abstraction.(6) But the pattern has often been similar: the creation of middle-level rules (on informed consent, surrogate decision-making, advance directives and so on) and then their downward application with insufficient attention to the clinical context, the specific characteristics of the disputants (such as insurance status, race or ethnicity, and gender), and whether the rules will actually work in medical settings.(7) In truth, both have been "applied" disciplines concerned not so much with ethical and legal theory per se, but with ethics and law in health care and the biological sciences. Yet the dominant approach in each has been to develop middle-level rules.(8)

These related paradigms are now under attack from a number of quarters. In bioethics, a plethora of alternative methods has recently been put forth, a new empiricism has challenged the content of previously accepted principles, and burgeoning feminist and race-attentive work has rendered suspect any bioethical approach geared to the generic "patient." A new crop of publications trumpets these challenges to the old order and attests to fundamental shifts under way.(9)

Less widely recognized is the comparable challenge brewing in health law. Courts and legislatures have long enunciated the rules of informed consent, advance directives, and surrogate decision-making, for example. We now are investigating with greater intensity how those rules and attendant legal practices (such as the use of forms) play out in the clinic, what empirical data provide in support or critique of the law, and whether all of this affects some groups differently.(10)

This growing attention to context, to empirical realities, and to difference has been diagnosed as "inductivism" or sometimes Rawlsian "coherentism" in bioethics.(11) However, placed side-by-side with the comparable shift in health law, it seems part of larger trends. This is not just parochial ferment in the limited ranks of bioethicists. Instead, it seems linked to the rise of a new pragmatism.(12) John Dewey, William James, and Charles Sanders Peirce have come to visit the clinic and find much to criticize.(13)

The problem with this diagnosis is that pragmatism is a slippery beast--hard to define and seemingly all things to all people, as others have long noted.(14) Yet the rejection of deduction from grand and universal principles in favor of detailed attention to context, empirical realities, and differences among individuals and groups supports the diagnosis.(15) The advantage of considering this diagnosis is the link it establishes to a vibrant intellectual tradition now enjoying resurgence, and to a multidisciplinary literature considering the implications.(16) As I conceded above, bioethics and health law have always been "applied" or practical. But in shifting their respective approaches increasingly away from something principleor rule-driven to something more inductivist and empirical, their approach to the practical becomes pragmatist.(17)

My goal here is first to analyze the paradigm shift under way in bioethics. I then analyze the less discussed shift I discern in health law. Finally, I consider what is gained by seeing both shifts as part of the pragmatist revival, and where bioethics and health law should go from here.

With the other authors in this symposium, I write in memory of Joseph Healey. Jay, I think, would approve the diagnosis. He was a student of the realities of health care,(18) attentive to the backghround importance of the power differential between doctors and patients(19) and to the larger context,(20) critical of the adequacy of any general principle (including patient self-determination),(21) and laboring to discern the proper future of health law.(22) I argue that the future of both health law and bioethics lies in the clinic, more than in the philosopher's study or law professor's library.(23) Jay spent his too short life working in clinical settings. If he could, he would welcome us back.

I. THE SHIFT IN BIOETHICS

For the bulk of its short history, modern bioethics has been dominated by what has come to be known as "principlism." This approach owes much to the pervasive influence of Tom Beauchamp and James Childress's Principles of Biomedical Ethics, now in its fourth edition.(24) Principlism is an approach to reasoning about ethical problems that proceeds in the main not deductively from higher-order theory, or inductively from fine-grained attention toward the situation presented, but from middle-level principles down to the case presented. The four principles offered in the book have become the most familiar litany recited in bioethics: autonomy, beneficence, nonmaleficence, and justice. The Principles book did not originate them; they were first offered by the National Commission for the Protection of Human Subjects in The Belmont Report.(25) The book, however, gave them great currency. To some extent, Beauchamp and Childress stand wrongly accused of promulgating principlism. Their ethical approach is more complex, some critics have been guilty of caricaturing it, and the latest edition of their book includes new material to address the critics.(26) Yet it is fair to say that in a great many quarters the book has been taken to advance a principlist approach.

The four principles and indeed principlism--reasoning and justification from such principles--had until recently so permeated the bioethics literature, bioethics clinical practice, and bioethics education, that there seemed to be little fundamental intellectual movement. We were dotting i's and crossing t's, doing what Thomas Kuhn might call "normal science."(27) We were in a period of quiescence.

That has now changed. We are in the midst of a paradigm shift, as Edmund Pellegrino noted not long ago.(28) We see fundamental challenges to the method of reasoning downward from middle-level principles, to the content of those principles, and to the failure of bioethics to attend to differences associated with gender, race, ethnicity, and insurance status. There is a proliferation of alternatives to principlism: a demand for even more abstract moral theory deductively applied,(29) advocacy of specified principlism,(30) a revival of casuistry,(31) the call for an inductivism based on empirical information or ethnography,(32) interest in narrative bioethics,(33) and the articulation of care-based ethics.(34) There are also challenges from a variety of perspectives to the content of the usual four principles.(35)

We simultaneously see the rise of empiricism in bioethics,(36) with attention to differences of race, ethnicity, and gender. Two prominent collections, for example, now explore African American perspectives on bioethical problems.(37) Empirical studies increasingly look for differences by race or ethnicity in attitudes toward advance directives and other aspects of medical decision-making.(38) We also see increasing empirical exploration by gender,(39) as well as the emergence of a feminist literature on bioethics.(40) And authors now explore the intersection of race, gender, and economic status.(41)

Thus, the period of quiescence in bioethics has yielded to one of great ferment. Yet what is most remarkable about this shift is how long it took to come about. The new debates on method and attention to gender arrived late compared to the fields whose interdisciplinary collaboration gave birth to modern bioethics. In law, for example, it would be difficult to have a serious debate now about whether there is any merit to feminist and other gender-attentive work,(42) or to Critical Race scholarship and other race-and ethnicity-attentive writing.(43) And, people who write on jurisprudence and philosophy of law would laugh at the idea that our method of traveling between cases and normative propositions is settled; witness the ongoing debates about storytelling and the uses of narrative.(44) So, there is something to explain in the slowness and reluctance of bioethics to face these issues.

I argue elsewhere that this reluctance is a function of the deep structure of bioethics.(45) First, it is a product of the field's early embrace of a liberal individualism largely inattentive to social context. This not only has made individual autonomy the pivotal value in bioethics, but has generally led to an overly simplistic vision of what autonomy and liberty entail. Only in recent times have communitarians, empiricists, and others rebelled, claiming that the picture of a monadic individual armed with her rights erases too much of her context and invites moral bankruptcy.(46)

Second to blame is the field's early embrace of Kantianism. This yielded requirements of universal norms, and an impartial perspective inattentive to relationships and community. It also privileged abstract reasoning over virtue, character, and the moral emotions. Thus we saw the rise of deductivism and moral systems building.

Third, bioethics has demonstrated a tendency to think of the patient or research subject generically, without attention to race, gender, or insurance status. The literature on the termination of life-sustaining treatment, for example, was until recently largely devoid of considerations of who the patient was, special barriers to communication that the doctor and patient might encounter, and different ways of thinking about ethical problems that some patients might embrace. Indeed, for lack of focusing on real characteristics of real patients, this abstract patient has often been thought of as someone without problems of race, gender, or resources. The result, I have suggested, has been a bioethics for the privileged patient.(47) This is a bioethics that has been strong on proclaiming individual autonomy to choose, but weak on insisting on access to health care and the creation of choices for those who have few.

Finally, the reluctance to face problems of method and difference even as related fields have assumed that challenge can be traced to the failure of bioethics to be self-critical.(48) This may well be rooted in the need for bioethicists to be accepted in the world of medicine and medical schools. Now that empirical research is demonstrating medicine's differential treatment of patients by race, gender, and insurance status, we have to wonder what critical edge and independence bioethics may have surrendered in striving so hard to be accepted in medical settings. Nor has the field of bioethics come to grips with the fact that bioethicists have been predominantly white, able-bodied, and insured, with few bioethicists explicitly writing from nondominant perspectives.(49)

Given this sociological and analytic history, the reluctance to face the challenges of method and difference should be no surprise. Nor should the ensuing anguish. What may be most surprising is that the challenges are finally being heard.

They are being heard in large part due to three developments: the rise of a robust empirical literature on what actually goes on in the clinic in ethically sensitive domains, the emergence of feminist work, and the development of raceattentive analysis. Each of these merits closer scrutiny.

A. THE RISE OF EMPIRICISM

Part of the challenge to bioethics method comes from an empirical literature provoking fundamental questions about the agreed wisdom. Though there were relevant empirical studies earlier,(50) beginning in the 1980s there was a growing volume of empirical studies on a range of bioethics topics.(51) These included informed consent, the use of do not resuscitate (DNR) orders, other decisions about forgoing life-sustaining treatment, the use of advance directives, and surrogate decision making for incompetent patients. …

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