Forgiveness, “Everyday Bioethics,” and the Church

A recent email message directed me to a warm and personal post entitled “Forgiveness and Aging,” by Dr. Al Martin over at the Hastings Center’s “Over 65 Blog.” (Dr. Martin, an academic physician who has also been Chief Medical Officer of Blue Shield of California, writes a blog called Age with Spirit that looks worth periodic visits.)

Check it out.  Dr. Martin’s thoughts, and the initial comments posted in response, are fine reflections on what it means to forgive.  Dr. Martin’s big point is that, as one’s life on earth winds down, one should seek to forgive, and not carry destructive anger or resentments all the way to the grave.  Amen to that.

My response, as a Christian layman and amateur bioethicist, is that this topic is right in the Church’s wheelhouse.  I remember Pastor John MacArthur once preaching that forgiving another person is the most God-like act one can perform.  Surely the ability to forgive is accessible to people in general, as part of common grace.  But as I recall the Lord Jesus Christ’s command to forgive “seventy times seven,” I’m also reminded (especially right after Holy Week) that he forgives to the nth degree, and calls us by the power of the Holy Spirit to do likewise—to exceed “normal” human capabilities.  And surely demonstrating and preaching forgiveness should be at the forefront of Christian bioethics.  I, for one, can get so wound up in arguments that I risk forgetting that living and preaching the Gospel comes first.

Further, I’ve found that bioethics can take me into a sort of echo chamber that is foreign to my fellow churchmen and –women.  Frankly, a lot of what we talk about, and the way we talk about it, goes over the heads of most people, doesn’t touch their daily lives, or can get too easily separated from critical spiritual concerns.  Last summer I spoke to my congregation about end-of-life issues, and I was quickly drawn to base my reflections in how we view, hold to, and, eventually, must relinquish this life, in light of the hope of eternal life with Christ.  And I was drawn back to the Scripture of course, but also to the medieval ars moriendi.  By them, the believer is encouraged to practice five “Christian graces”—reaffirmation of faith, hope for forgiveness, charity and patience, humility and recollection of sins, and detachment—to counter five parallel temptations:  lack of faith, despair, impatience, complacency, and greed.  The big aim, of course is for us, as we approach the end of life, to prepare for that, and, indeed, to prepare to meet our Maker.  (Oswald Chambers said that we should be ready to meet Jesus “at every turn.”)  This clearly includes forgiving others and seeking reconciliation (and being willing to pursue it when sought by a dying relative or acquaintance).  It also clearly includes consistently pointing to Christ, and what it means to be forgiven and to forgive.

The writers at the “Over 65 Blog” are thinking a lot about end of life care, “futility,” and public policy, to be sure, but they are also reflecting on the challenges of getting older.  As I get older, I hope I can link up with that effort.

Three Stem Cell Developments

The news this past week carried three reports related to developments in stem cell research.  Briefly, starting with the farfetched and ending with the “nearfetched”:

First, the Wall Street Journal reported on efforts to “grow” human organs in the lab.   People who try to “keep score” of therapeutic results with adult vs. embryonic stem cells may recall a case in recent years in which surgeons (in Germany, I believe) fashioned a new trachea, or windpipe, for a patient using that patient’s own adult stem cells.  The current report follows this track.  In its most daring application, a heart is “grown” in the lab.  Well, not exactly: it’s not like researchers expect a clump of cells to magically take on the full, functional form of a human heart in a Petri dish.  (I’m sorry, I should be serious, but I cannot but recall my late, lamented Weekly World News carrying the front page story that Hitler’s nose had been cloned in a Petri dish—complete with a photo of the darn thing, mustache included.)  Seriously, these researches take an approach similar to the windpipe case.  They obtain a donated heart from someone who has died (i.e., a cadaver heart), and strip off all the cells, leaving only the foundation of connective tissue, the scaffold on which the functional heart cells had rested.  Then, they take adult stem cells—the idea is that these come from a patient whose heart is failing, who ordinarily would need a transplant—and place those on the scaffold, taking steps to induce the cells to differentiate into heart cells.  It’s still very early, but in concept this approach to organ engineering looks promising.  The cadaver heart need not be fresh, as it must for a transplant as currently practiced.  That means that there is no urgency to harvest the heart immediately after death, and there would be no pressure on the definition of death, and no concern about over-eager transplant surgeons jumping the gun.  Also, the “scaffold” is not particularly immunogenic, so the patient’s immune system would “see” the immunologic type of the patient’s own cells.

Now, there are years—10, at least—of research needed to find out whether this will work, but the approach appears promising.  If it does pan out, it seems to me the principal ethical issue invoked will be justice:  how much will it cost, and who will be able to get it (i.e., will we socialize the cost)?  That is for another day.

Second, a federal court let stand a decision favoring the FDA over Cytori Therapeutics, in a case involving the company’s device that allows surgeons to separate out adult stem cells from a patient’s fat.  The initial application has been in breast reconstructive surgery, and I believe the device is approved in at least one country outside the U.S.  In the U.S., however, the FDA is going to insist that the company prove, in a large, randomized clinical trial (at least one of which is in progress) that the device is safe and effective.  This places the device in a high-risk regulatory category (like, for example, cardiac defibrillators), not a lower risk category that would allow the company to get fast approval simply by showing that the device is similar to a prior, or as the FDA calls it, a “predicate” device.  (There are further nuances, because in some cases, if the risk is low enough, FDA lets a new device without a predecessor serve as its own “predicate” device, but that is too far into the weeds for this post.)  In any event, the court sided with the FDA, and the company was not surprised—this has been going on for a while.  But it is consistent with FDA’s approach to adult stem cells in general, which is that the Agency views them as sufficiently manipulated to require full-blown development, as for new drugs—even if all a doctor does is take tissue from a patient, spin it in a centrifuge to pull out the stem cells, then re-inject the same stem cells, with no other doctoring, back into the same patient.  That, in turn, is what lay behind the State of Texas trying to circumvent the FDA in recent past, to let doctors use adult stem cells in some ways for their own patients.  But the FDA will win this, in the end.  The net effect will be to slow down the availability of treatments using adult stem cells, and to make it necessary that deep-pocket companies bear the costs of the research.  On the margin, as I have blogged in the past, I think the FDA’s maybe being a bit too conservative, but “it is what it is.”

Third, the California Institute of Regenerative Medicine (CIRM), the body that was created with several million dollars’ funding a few years ago, largely for the purpose of promoting research with embryonic stem cells—which require destruction of one or more embryos to be obtained—is establishing a stem cell bank—not with embryonic stem cells, but with induced pluripotent stem cells (iPSCs) and adult stem cells derived from them.  Cells will be obtained from people with a variety of chronic diseases that are priority areas for research supported by the CIRM.  Makes all the sense in the world from the standpoint of basic and translational (applied) research.  The takeaways?  The CIRM is following the science, and not all of the research it supports is ethically questionable (although some still is, and there are other issues with how the CIRM operates that I won’t go into here).

To close, a reminder to scientifically uninitiated social conservative types:  we are not “against stem cell research.”  We are against unethical research, including research that does not adequately protect human subjects (including the unborn), wherever it is proposed.

Anthrax Vaccine Research on Healthy Children [in advance of an attack]?

Meanwhile, back at the ranch…

Over at his “Human Exceptionalism” blog, Wesley Smith is appalled that the Presidential Commission on the Study of Bioethical Issues (PCSBI) has done something that President George W. Bush’s Bioethics Commission would never have “countenanced;” viz., the PCSBI has “given conditional approval to test anthrax vaccine on children!”  (The exclamation point is his.)

This is a reminder to me to keep an eye on what the PCSBI is up to.  I have not had a chance to review their report, which was just issued today.  I’ve only been able to read the executive summary.  What the PCSBI was considering, at the request of HHS Secretary Sebelius, was the ethics of “pre-event” testing, in children, of medical countermeasures intended to treat people in the event of a terrorist attack like an anthrax release, or a big radiation exposure.  The anthrax vaccine was the test case-in-point.  It has been tested in adults, with some side effects, mostly mild but a couple more serious.  For brevity’s sake, no more about that at the moment.  But what about testing in normal kids, before an attack?  Why not do such a study now?  The reason to do it would be mainly to get the dose right—but the dose could be different for 17 year-olds than for babies, because the immune system develops along with the entire individual.  Goodness, are we talking about exposing babies to the risks of anthrax vaccine?

My first reaction was to be as aghast as Smith.  I can scarcely imagine a scenario in which I, were I sitting on an IRB reviewing a proposal, could approve of testing anthrax vaccine on normal, unexposed children.  My second reaction, after reading the PCSBI’s executive summary, is that we should not rush out to lynch them.

Some background:  The current regulations protecting children in biomedical research are, of course, patterned on Belmont principalism, and while found in more than one place, are principally given in 45 CFR 46, Subpart D.  I don’t think, today, that I can improve on them; maybe other readers of this blog are willing to take that task on.  But they are the common reference point in the U.S., anyway, for questions like this.  Briefly, with few exceptions, biomedical research on children must expose them to no more than minimal risk, which means “that the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.”  Also, any research involving children as subjects must provide for parental informed consent and age-appropriate assent of the child.

What are the exceptions to the minimal risk standard?  They are:

a)    Research that offers the prospect of direct benefit to the participating child and poses more than minimal risk may be acceptable if the prospect of benefit outweighs the risks (in the IRB’s judgment); or

b)    Research that offers no prospect of direct benefit, but is likely to yield generalizable knowledge about disorders or conditions affecting the participating child, may be acceptable if the risks posed are “a minor increase over minimal risk;” or

c)       Research not otherwise approvable, but which “presents an opportunity to understand, prevent, or alleviate a serious problem affecting the health and welfare of children” may be acceptable if it passes IRB muster AND the Secretary of HHS, “after consultation with a panel of experts in pertinent disciplines…and following opportunity for public review and comment,” finds the research passes ethical muster.

What did the PCSBI recommend?  Rather than enumerate the recommendations, I’ll paraphrase.  It helps to go in somewhat reverse order.  The Commission ended by saying that “post-event” studies (i.e., testing AFTER an attack had been launched) in kids would be an ethical responsibility, and such studies should be designed now, in the awful event that an attack occurred.  (Can’t we imagine the clamor for an experimental vaccine for our kids in such a case?)  Such testing should be done under existing regulations for an “IND,” an exemption (from the requirement for drug approval) for testing of an investigational new drug—the drill that every new drug in development goes through.  No argument there.

Beyond that, while some might think that the Commission opened the door for testing anthrax vaccine in children, in advance of an attack, I don’t see the door ajar yet.  It seems to me that the PCSBI was describing the shape of the lock.  From their cover letter to the Secretary:

“The Bioethics Commission concluded that in the case of pre-event pediatric MCM research, absent exceptional circumstances, all research must be designed to pose only minimal risk to child participants. When pre-event pediatric MCM research cannot be conducted as a minimal risk study, only research that poses no more than a minor increase over minimal risk—a level that is still very limited and poses no substantial risk to health or well-being—should proceed to national-level ethical review under current regulations (45 C.F.R. § 46.407/21 C.F.R. § 50.54). The Bioethics Commission proposed an ethical framework to ensure the thoroughness and ethical rigor of such national-level review. Regardless of whether pre-event research is conducted, post-event pediatric MCM research should be planned in advance and conducted when MCMs are administered to children in an emergency. When untested MCMs are made available to children in an emergency, research protections should be in place.

“In addition to generally reviewing the ethical considerations of MCM research, Secretary Sebelius requested that the Bioethics Commission specifically address the ethical considerations of pediatric testing of AVA. (The Bioethics Commission has not been provided a protocol to review, nor is it within the purview of the Bioethics Commission to sit as an institutional review review board or a national-level review panel under 45 C.F.R. § 46.407/21 C.F.R. § 50.54.) The Bioethics Commission concluded that before ethical pre-event pediatric AVA trials can be considered, further steps must be taken, including additional minimal risk research with adult participants, in order to determine whether the research risks to children—who do not stand to benefit directly from it—can be reduced to a level that poses no substantial risk to their health or well-being.”  (Emphases mine.)

In other words, heaven forbid we might ever really want to consider this, and if we do, we would not even let an IRB review it unless a lot more information and justification were made available, and the study were designed in certain ways to ensure as close to minimal risk as possible.  But given the awful nature of the potential threat, the Commission refused to say “we shall not.”

I will say that, from my brief initial review, it sounds like the Commission may have been conflating exceptions b) and c) from my list above.  (BTW, 45 CFR 46.407 is “exception c” above.) Clearly, “pre-event” research would fit criterion c), because healthy children would not have a “condition” like being exposed to anthrax.  Yet, the Commission appears to be applying the more rigorous standard of exception b), above.  Then again, depending on how much one trusts our appointed officials (and, pointedly, our HHS Secretary), the process of review for c) maybe doesn’t inspire as much trust as the authors of the regulations hoped.  Frankly, I prefer the insistence on the “minor increase” over minimal risk limit.

So, at this juncture, I’m not willing to rush to condemn the Commission, but I also think the bar is about as high as the moon for this kind of research.  I think I’d want to see a nearly adverse-event-free vaccine in adults and a threat sufficiently imminent to have the CDC wanting to vaccinate the adult population widely.  Smith suggests that the first kids volunteered for these “pre-event” studies should be the children and grandchildren of Commission members.  That’s a little rough, but unless I was convinced there was a meaningful threat (and risk thereof), I would actively try to keep my grandkids OFF such studies.

This is not a simple case, and I’ve glossed over a lot here, blog space and my energies being limited.  What do others of you think?

Toward Reasserting the Ends of Medicine

Recent posts by Drs. Gibes and Haack state that a recapturing of the ends of medicine—what medicine is about—is urgent, and any reassertion of those ends should be led by physicians.  I agree (even if some of our exchanges expose areas of disagreement, particularly about specifics of public policy).  When we say that the ends of medicine must be reclaimed, what do we mean?

This question prompts me to ask about a philosophy of medicine.  Dr. Pellegrino articulated the fullest such philosophy I’m aware of: medicine is a true calling, a profession, not a job or a business; it is characterized by a covenantal relationship between physician and patient; duty requires the physician, from time to time, to efface his self-interest in favor of the patient’s interest; and so on.  (I do not hope to write an adequate summary of Dr. Pellegrino’s philosophy here, I simply mean to remind us that he has spent a lifetime developing it.)  I also recall, again, the characterization I heard from Dr. Samuel Thier, years ago, of members of a “learned profession”: they are committed to lifelong learning, they police one another, and they value performance over reward.

It seems to me that everyone whose name is followed by the letters M and D (present writer included) must come to terms with these viewpoints, regardless of where he is stationed within the sprawling enterprise we call modern medicine.    It also seems to me that the sprawl invokes a thicket of often-competing duties that can complicate efforts to step back and unpack the proper ends of medicine.   It further seems to me that the task of restating the ends of medicine might be simplified by starting with the perspective of the individual practitioner—a perspective that I invite my fellow bloggers, who take care of patients (I don’t, any more) to take the lead on.

How might this project proceed?  I take the perspectives of Drs. Pellegrino and Thier to be axiomatic.  I also take as axiomatic a commitment to the life and dignity of each individual patient, a commitment to human exceptionalism, and a commitment to defend what bioethicists call “the therapeutic boundary.” That said, I suggest that a renewed discussion of the ends of medicine might break out such specific questions as:

1)      As Dr. Haack seems to be asking, what is the scope of medical care that mercy requires we advocate be offered, at equal practical opportunity, to all humans?

2)      If choices must be made among the items included in 1), which of their costs ought to be socialized (through public or private means)?  Or, conversely, are there any medical costs that ought not be socialized?  In other words, what should the physician demand his healthy neighbor pay for, on behalf of his patient, and what are the limits of that authority?

3)      If “good medicine” is, as seems self-evident, an “end” of medicine, how much does good medicine require or permit an individual physician’s judgment as opposed to following treatment guidelines that are at least claimed to be “evidence based,” or to managing for disease outcomes?  How do we approach—and who interprets—“the data?”  (Last week, Dr. Gibes provided a link to the excellent collection, found at the ABIM’s “choosing wisely” website, of lists of questionable procedures.  Each list that I reviewed was followed by a disclaimer—“see your doctor”—yet the evidence is believed definitive for these cases!)

4)      What is the physician’s relative duty to her individual patient as opposed to the public health, or more elusively, the public good?  A case study in last year’s Hastings Center Report posed the case of a 56 year-old woman with treatable soft-tissue sarcoma who visits her physician carrying a supply of an effective medicine that is in such short supply that public policy calls for it to be used primarily for pediatric cases.  Is the physician obligated to administer the drug to the woman, the case asked?  Incredibly [to me], the [eminent] discussants said, “no.”  Correct?

5)      What constitutes an ethical practice arrangement in the 21st century?  To be sure, obvious profiteering or conflicts of interest are out of bounds, and arrangements that create the potential for conflicts of interest (such as certain ways some specialists are paid) should be re-arranged.  But are certain kinds of physician group structures ethically preferable, and if so, what is the proper role of people skilled at managing money or organizations?  And is it ethically substandard for a physician to be an employee of, say, a hospital system?  And how can a physician-employee make sure he is advocating for his patient?

I hope that my fellow bloggers will take up these or other relevant issues further, systematically, brick by brick.

Michael Gerson on Dr. Koop

I thought I’d be piggy and sneak in an extra post–rather than a comment–to direct readers of this blog to the remembrance of Dr. Koop by Michael Gerson, current Washington Post columnist and former speechwriter for President George W. Bush.  Mr. Gerson makes the point I was trying to make in my post last week, only better, and at greater length, with some neat story-telling in there to boot.  If you haven’t seen it, I recommend following the hyperlink and reading it.

Moral Beauty and Moral Realism

Loose-associating during a terribly busy week…

I have a friend—a self-described atheist—with whom I renew arguments on a regular basis.  We don’t just argue, but we do argue.  He thinks I’m delusional.  I counter that he’s in denial.  (See Romans 1:18.)  He’s very concerned to live a moral life, and believes (as do I) that he does.   He’s does not attempt to suppress or apologize for outrage over moral failings, and he applies his judgments fairly consistently.  He’s a man of the left (he’d vigorously object to that, but it’s true), I’m a conservative (meaning:  a knee-walking, knuckle-dragging troglodyte).  We agree about more than you might think.  But he can’t explain why an apparently open-minded, rational person like me would disagree with him, except to understand me as a misguided medievalist (his terminology, not mine).  Fair to a point—I am sort of a Thomist, interested in a natural law approach to things, after all.

I appeal to worldview, for one—where we start determines whence we can reason—and I suppose I need to walk him through the limits of reason in achieving moral agreement.  (I hear you, Dr. Englehardt.)   I also try to be a good “natural lawyer” and reason with him.  (Forgive me, Dr. Englehardt.)  That gets one only so far, of course.

Something else is going on, though.  I think my friend is an example of what I call a “modern moral realist.”  (He might disagree, but go with it for the sake of argument.)  The modern moral realist, as I understand him, thinks that when we say “x is morally wrong (or right),” we are stating a true fact about the world.  But that is, as it were, an “observed” fact—not a physical property, but one that supervenes on physical states of affairs.  We can differ about how we recognize these moral facts, but we do.  This is preferable to appealing, for example, to moral laws, which tend to entail something religious or like it.

The details vary, but I don’t find the perspective convincing, because to recognize a moral fact requires the existence of some sort of prior moral precept, it seems to me.  (I take this to be entailed in C.S. Lewis’s argument, for example, in The Abolition of Man, or J. Budziesziewski’s concerns about what he calls “the second tablet project.”)

But then there is this:  in preparation for our men’s retreat this weekend, the men of my congregation have been tasked to read and pray through Psalm 119.  A note to that psalm in my ESV Study Bible says, in part, that “[t]he psalm speaks the language of one ravished with moral beauty, to which there is only one fitting response—to try to reproduce this beauty, as much as possible, in one’s daily life.”

“Moral beauty?”  Should we think in terms of an aesthetic of ethics? Although Psalm 119 repeatedly uses words like “precepts” and “rules,” apprehending moral beauty sounds like something not quite the same as reasoning from first precepts.  It’s not exactly “virtue ethics,” and it’s not exactly the same as recognizing the dictates of conscience—deep or otherwise.  It sounds like something that doesn’t exactly fit analytic philosophy.

Maybe these are distinctions without differences.   As I said at the outset, I’m loose-associating today.  But maybe the notion of moral beauty should make me more sympathetic with the modern moral realist.  Then again, it does require that we learn how to see.

Rest in Glory, Dr. Koop

Readers of this blog no doubt noticed yesterday’s new that Dr. C. Everett Koop—pediatric surgeon, advocate for children born and unborn, public servant, and disciple of Christ—has departed this world.  He was 96—old and full of years.  I never met him.  I knew people who knew him.  At a distance, I found it a duty to respect and admire him.

Among the public, I suppose he will be best remembered for three things:

First, his opposition to abortion.  My generation of culture warriors rallied around his work with Francis Schaeffer on Whatever Happened to the Human Race?  He called amniocentesis “a search and destroy mission.”  I don’t recall him speaking recently, very late in his life, about the abuses of PGD, but I’m sure they fit the same criticism.  I think it best to see his pro-life stance not politically, but in the context of his calling as a doctor and his consequent advocacy for children in general.  As I recall, he fought those who would have let die infants who could be saved for a full, normal life by the surgical techniques he pioneered.

Second, his battle against smoking and tobacco use in general.  I recall reading a comment by Dr. Kessler, when as FDA Commissioner he was making the first push to bring cigarettes under FDA regulation, that Dr. Koop had urged him to press that fight to the fullest.  It’s always seemed to me that if you have “M.D.” after your name you really have to sympathize with that push.  It did raise the [ongoing] question of where the boundary of government paternalism ought to be drawn.  In retrospect, tobacco looks to me like “low-hanging fruit,” an easy target.  Alcohol?  Caffeine?  Marijuana?  Calories?  I am tempted to speculate how a current Surgeon General Koop, at the full height of his powers, would weigh in (no pun intended w/r/t calories) about these—but I’ll keep those speculations private.

Third, and most famously, his aggressive approach to address the emerging AIDS epidemic.  I look back on those efforts as Koop the physician speaking, out of the compassion of his calling, to arrest the spread of a devastating disease.  Seen that way, condom use and early sex education were critical means to an important end.  (I would, however, prefer parents, rather than government, doing the latter.)  And to withhold condemnation of a person is not to condone what he does.  Sometimes, a physician has to forego or at least delay challenging a patient’s behavior.  We all recognize this as a joke: “Doctor, it hurts when I do this.  Well, don’t do that.”  At the same time, every doctor has patients who need to be told, forcefully, to quit this or that behavior, for their own good.  Mercy and wisdom are needed for those conversations.

The headline in The Wall Street Journal was execrable:  “The Public’s Health Trumped His Beliefs.”  Nonsense.  When your core belief is to follow The Great Physician, there is no fundamental conflict.  Difficult decisions about conflicting duties, yes.  Self-effacement when necessary?  Sure.  Data over principles?  No way—the issue is truth and wisdom in the service of moral principles and values.

R.I.P., C. Everett Koop, M.D.—or, should I say, “R.I.G.”

San Diego Hospice—Update

Last week, San Diego Hospice announced it will close in the next 60-90 days.  Efforts are underway to ensure continuity of care for their current patients.  A [substantial] portion of its assets will be auctioned off; Scripps Health has made a “floor” bid of $10.7 million.   But it looks like as many as half of the remaining employees will be laid off.  There is reluctance on the part of potential buyers to just purchase the hospice in its entirety, because the size of the liability is unknown (as I noted last week).

Let’s hope that good palliative care becomes increasingly established as good medicine wherever it is needed, and that third-party payer rules don’t squeeze it as it (and some patients, by extension) get better.

Worth reading is the San Diego Union-Tribune’s story about Dr. Doris Howell, the founder of San Diego Hospice.

End-of-Life for a Major Hospice?

San Diego Hospice may not make it.

That’s the news out here for an organization that is described as “iconic in the hospice world.”  Last November, a Medicare audit concluded that the government had been overcharged—a lot—by San Diego Hospice.  Apparently the problem was filing claims for people who weren’t quite sick enough—expected to die within 6 months—to require hospice care by the Medicare reimbursement rules.  And, sometimes, people get a bit better, so they outlive expectations and aren’t supposed to qualify for continued Medicare reimbursement, but the hospice continued to file claims.

The immediate repercussions have been catastrophic—a Chapter 11 bankruptcy filing, a 30% shortfall of operating expenses, layoffs of about a third of employees, with more likely on the way, and a reduction in inpatient hospice census from 1000 to 450, so the local paper reports.  The CEO says they may not “have a viable organization moving forward.”  How much does Medicare think it should be refunded?  Try a number north of a million dollars—perhaps well north of that.  At least, that is the worry.  Just how much money we are talking about may not be clear to S.D. Hospice—and if so, that may be part of the problem.

The publicly-available information is still incomplete.  I have not seen allegations or speculations about poor management or fraud, and I certainly am in no position to speculate on the details of the case.  My first reaction was to think that an organization pressured by tight reimbursement rules got out “over its skis,” as it were, trying to get paid as much as legitimately possible, and in the process made some mistakes.  I don’t know.

There will still be hospice service available in San Diego County.  Competitors are emerging.  But I hope this will not mean that medically-appropriate palliative care will get too squeezed by payment rules—indeed, at a time when the merits of good routine palliative care is being more prominently discussed, at least in the oncology publications I try to keep up with.  And I guess it means that even for non-profits, money matters, and “good business management” is not a dirty word.

A story to be followed…

Conscience, Data, and the Burden of Proof

Dr. Susan Haack’s recent posts on conscience, and the ongoing struggle over the HHS regulations on mandatory insurance coverage for contraception under the Affordable Care Act, demand more careful further reflections than will fit in a blog post, but I will dare to stick a toe in nonetheless.

In The Line Through the Heart: Natural Law as Fact, Theory, and Sign of Contradiction, J. Budziszewski argues (see pp 8-15, for example) that “deep conscience,” which is “rooted in the constitution” of all humans, is a cardinal indicator of the existence of a natural moral law.  Deep conscience “remembers” general moral norms (including, he argues, the Decalogue).  I’d take this to be Dr. Haack’s “antecedent” function of conscience.  Budziszewski then distinguishes three “modes” of conscience:  cautionary, accusatory, and (for lack of a single term) confession/reconciliation-seeking—the “consequent” functions Dr. Haack mentions.  He would certainly agree with Dr. Haack (as do I) that conscience points to a transcendent authority.

Presumably (me talking now, not Budziszewski), we form correct moral convictions by agreeing with deep conscience about moral truth.  However we arrive at those convictions, we can argue that they too have “antecedent” functions in that they are, if properly understood, sufficient to motivate ethical behavior.  (I just glossed over a major discussion in ethical philosophy that I ask the reader to accept for the sake of argument here.)  Convictions do not, however, produce a sense of guilt, accountability, or of a need for reconciliation.   Conscience does that.   Whether we recognize it or not, conscience is witnessing to our accountability before God.  People who deny God’s existence, however—and who may well also interpret “guilt” to mean a response to bad-faith intimidation by the organized church—can still coherently claim, it seems to me, to act out of conviction with accountability to the community, as long as the standard is some sort of community-recognized norm.  In a pluralistic society, one can appeal to positive law or what we can agree on; or, alternatively, one can appeal to the shared understanding of what it is to be an autonomous moral agent (as I take the German philosopher Jürgen Habermas to do).  Just don’t plead metaphysics.  But the appeal to convictions is not ripped from its community connections—it depends on them, just in a different, but critically different, way.

And that, of course, is the problem.  People like me are making a metaphysical argument (actually, I want to argue for a form of natural law) in a positive law world.  Some of the “positive lawyers” claim that their convictions are objective, not relativistic, because they are available to observation, as in the natural sciences, so we can agree on them, revising our understanding as we get new information.  We are left with a sort of “naturalist’s natural law.” I think that is irredeemably relativistic, in the end—if God is dead, nothing is out of the question.   I understand Budziszewski to agree.  He criticizes the “positive/natural lawyers,” if you will, of pursuing a “second-tablet project”—that is, isolating the “second [stone] tablet” of the Decalogue (Commandments 5-10) from the more explicitly God-directed first 4 commandments of the “first tablet.”

So what?  First, I would submit that the “conscience/convictions” argument doesn’t help all that much in cases like the HHS mandate.  The issue is how much room to give to particular metaphysical stances—the public/private square problem.  Pluralistic norms vs religious freedom is still the battle.  And it will not do to say that profit-seeking makes the moral application of metaphysical commitments illegitimate.  To put the fine point on it, Hobby Lobby’s owners ought to be accorded the same freedom of conscience as are the Catholic Church, or a church-run hospital, or Wheaton College (for example).  I worry, perhaps too much, that bioethicists in particular worship at the altar of non-profit status in ways that risk serious mistakes.

Second (and cf. the recent post by Dr. Joe Gibes), statements like “[The] lack of any substantial evidence for post-fertilization effects [of emergency contraceptives] may significantly weaken conscience claims, and may militate against refusals to dispense or to refer,” [Lewis and Sullivan, Ethics & Medicine 28:113-120, 2012] will not do.  Failure to prove is not disproof.  Absent definitive data, prohibition of emergency contraceptives may be weakened.  But without definitive data—which may not be accessible by ethical experiments—sufficient to free the conscience of concerns, conscience claims of someone with a reasonable doubt about what the data mean ought to be vigorously defended, even against a strong majority consensus.   We should not let a prevailing tide of naturalistic, “data-driven” ethics confuse our use of the data in service of true moral precepts.