Public bioethics and the bush presidency

Harvard Journal of Law and Public Policy

Volumn 32, Issue 3, 2009, Pages 867-913

  Snead, O Carter ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 70149111458     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (184)

1. Gilbert C. meilaender, Body, Soul, and bioethics l (1995) ("Albert jonsen dates the 'birth of bioethics' from the year 1962, when Shana Alexander's article describing the Seattle dialysis selection committee appeared in Life magazine. Elsewhere, Jonsen describes 1965-75 as the 'formative decade' for bioethics in this country. David Rothman, in what is the first history of the bioethics movement, dates its beginning with the 1966 publication of Henry Beecher's articles exposing abuses in human experimentation."). The origin of the term "bioethics" is contested, though its first usage appeared in 1970. It has been attributed both to Sargent Shriver (original hinder of the Georgetown Kennedy Institute of Ethics) and Van Rensselaer Potter (research oncologist from University of Wisconsin). Whereas Shriver used the term to denote the ethical analysis of the development and application of biomedical science, Potter seemingly meant something more capacious, encompassing the relationship between man, his environment, and the civilized world. Shriver's definition more closely approximates the meaning of the term as it is used in America.
2. For a discussion of the history of the term, see Albert R. Jonsen, The Birth of Bioethics 26-27 (1998).
3. Such conferences included Great Issues of Conscience in Modern Medicine, held at Dartmouth College in 1960, Man and His Future, held by the Ciba Foundation in London in 1962, the Nobel Laureate Series at Gustavus Adolphus College, which included Genetics and the Future of Man (held in 1965, featuring a presentation by William Shockley on eugenics, and a rebuttal by Paul Ramsey), and The Human Mind (in 1967, featuring a presentation by James Gustafson).
4. For a detailed discussion of these events, see jonsen, supra note 1, at 13-15.
5. Dr. S. Marsh Tenney (then Dean of Dartmouth Medical School) noted at one of the very first such events "Although [medicine's] foundations have become more rational, its practice-the welding of science and humanism-is said to have become more remote and indifferent to human values, and once again medicine has been forced to remind itself that it is often the human factors that are determinant." Id. at 13.
6. Such institutions included The Hastings Center (opened in 1969 to study ethical issues relating to death and dying, behavioral control, genetic engineering and counseling, and population control) id. at 20-21
7. the Society for Health and Human Values (opened in 1968 in response to concerns about an undue emphasis on mechanistic explanations in medical education) id. at 24-25
8. and the Kennedy Institute of Ethics at Georgetown University (opened in 1971 to study issues in reproduction and ethics) id. at 22-23
9. Id. at 92-100. Senator Walter Mondale convened hearings in 1968 in connection with his proposal to create a "President's Commission on Health Science and Society," which would recommend policies on organ transplantation, genetic engineering, behavior control, human subjects protections, and the financing of research.
10. See id. at 90. In 1973, Senator Edward Kennedy convened hearings to discuss proposed research on living fetuses slated for abortion and race discrimination in human subjects abuses (such as those that had occurred in Tuskegee, Alabama).
11. See id. at 95. These hearings resulted in the passage of the National Research Act, Pub. L. No. 93-348, 88 Stat. 342 (1974), which created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, charged "to identify the basic ethical principles that should underlie the conduct of biomedical and behavioral research involving human subjects and develop guidelines that should be followed in such research," and to conduct a "comprehensive study of the ethical, legal and social implications of advances in biomedical research." Jonsen, supra note 1, at 99-100. The Secretary of Health, Education, and Welfare (now known as the Secretary of Health and Human Services) was directed by law to implement the advice received by the National Commission within a stated period of time, or to show cause why such action was not taken.
12. See, e.g., Remarks on Signing the Fetus Farming Prohibition Act and Returning Without Approval to the House of Representatives the "Stem Cell Research Enactment Act of 2005," 42 weekly comp. pres. doc. 1362, 1364 (July 19, 2006) ("America was founded on the principle that we are all created equal and endowed by our Creator with the right to life."). Some might argue that "human dignity" was the grounding norm, and it is true that President Bush sometimes used that term to describe his approach. That said, the concept of dignity is famously contested and difficult to define.
13. See president's council on bioethics, human dignity and bioethics (2008). Moreover, the President's recurrent theme was the equal value and "matchless worth" of all human lives. In defending this good, the President regularly invoked the Declaration of Independence and similar sources. Accordingly, this Article will treat "equality" as the appropriate term to describe his grounding norm for public bioethics.
14. For a very brief discussion of how such supporters and critics might appraise the Bush Administration's legacy for public bioethics, see infra Part III.D-E.
15. Inaugural Address, 1 PUB. PAPERS 1,1 (Jan. 20, 2001).
16. Remarks on the Observance of Malaria Awareness Day, 43 WEEKLY COMP. PRES. DOC. 525 (Apr. 25, 2007).
17. Remarks on Signing the United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, 44 WEEKLY COMP. PRES. DOC. 1045 (July 30, 2008).
18. Inaugural Address, 41 weekly comp. pres. doc. 74 (Jan. 20, 2005). Obviously, some would take strong issue with this justification and would argue to the contrary that the President's doctrine of preemption reflects an unequal valuation of American lives (risked by the threat of terrorism) compared to the lives of innocent civilians living in terrorist-supporting regimes targeted by the U.S. military.
19. See, e.g., Telephone Remarks to the March for Life, 42 weekly comp. pres. doc. 101 (Jan. 23, 2006) ("You believe, as I do, that every human life has value, that the strong have a duty to protect the weak, and that the self-evident truths of the Declaration of Independence apply to everyone, not just to those considered healthy or wanted or convenient. These principles call us to defend the sick and the dying, persons with disabilities and birth defects, all who are weak and vulnerable, especially unborn children.").
20. See also the discussion of the Bush Administration's policy for federal funding of embryonic stem cell research, infra Part II.A, and the case of Terri Schiavo, infra Part II.D.2.
21. See, e.g., Remarks to March for Life Participants, 44 weekly comp. pres. doc. 93 (Jan. 22, 2008) ("This America is the destiny of a people whose founding document speaks of the right to life that is a gift of our Creator, not a grant of the state.").
22. President Bush's conception of human equality stands in stark contrast to those frameworks that define "persons" (that is, rights-bearing individuals who merit moral concern and forbearance) in a more exclusive fashion-according to more exacting criteria such as the presence or absence of certain active capacities (such as sentience, the ability to feel pain, and so on). This competing approach is reflected in H. Tristram Englehardt's argument that "persons" are those who have the ability to be "concerned about moral arguments and... convinced by them. They must be self-conscious, rational, free to choose, and must possess moral concern." meilaender, supra note 1, at 109-110 (quoting H. tristram englehardt, Jr., The Foundations of Bioethics 105 (1986)). In a similar vein, bioethicist Ronald Green has argued that the criteria for personhood need to be determined by those who are indisputably persons (that is, members of the able-minded community of reasoners), according to their judgments about how granting or withholding moral personhood might affect the liberty interests of the decisionmakers.
23. Ronald Green Toward a Copernican Revolution in Our Thinking About Life's Beginning and Life's End 66 SOUNDINGS 152 152-57 (1983). Under these and related approaches "personhood" or moral worth is something that is earned or accrued, and thus is possessed by a subset of human beings. It is not a universal, intrinsic quality, co-extensive with merely being a living human being.
24. Hans Jonas, Philosophical Reflections on Experimenting with Human Subjects, 98 Daedalus 219,240 (1969).
25. See, e.g., Statement on Signing Legislation for the Relief of the Parents of Theresa Maria Schiavo, 41 WEEKLY COMP. PRES. DOC. 484 (Mar. 21, 2005).
26. See, e.g., Remarks on Returning Without Approval to the Senate the "Stem Cell Research Enhancement Act of 2007," 43 WEEKLY COMP. PRES. DOC. 832 (June 20, 2007) ("Destroying human life in the hopes of saving human life is not ethical...");
27. Telephone Remarks to the March for Life, 38 WEEKLY COMP. PRES. DOC. 101 (Jan. 22 2002) ("[A]nd a compassionate society will defend a simple, moral proposition: Life should never be used as a tool or a means to an end.")
28. George W. Bush, Op-Ed., Stem Cell Science and the Preservation of Life, N.Y. TIMES, Aug. 12, 2001, at WK13 ("There is at least one bright line: We do not end some lives for the medical benefit of others.").
29. See Message to the House of Representatives Returning Without Approval the "Stem Cell Research Enhancement Act of 2005," 42 weekly COMP. pres. DOC. 1365 Quly 19, 2006) ("Like all Americans, I believe our Nation must vigorously pursue the tremendous possibilities that science offers to cure disease and improve the lives of millions.").
30. James A. Thomson et al., Embryonic Stem Cell Lines Derived from Human Blastocysts, 282 Science 1145 (1998).
31. Pluripotent cells are unique and valuable because they are undifferentiated (meaning that they have the capacity to become any kind of tissue in the body) and, in principle, self-renewing (that is, they can reproduce themselves indefinitely without losing their pluripotency). They can be derived from the inner-cell mass of the early embryo (embryonic stem cells), the gonadal ridge of the early fetus (embryonic germ cells), and perhaps from a variety of other sources, including amniotic fluid, bone marrow, adipose cells, and so on. Recent developments suggest that adult cells can be reprogrammed to pluripotency through the introduction of certain genetic factors.
32. See e.g., Kazutoshi Takahashi et al., Induction of pluripotent stem cells from adult human fibroblasts by defined factors, 131 CELL 861 (2007)
33. See Sheryl Gay Stolberg, Scientists Create Scores of Embryos to Harvest Cells, N.Y. times, July 11, 2001, at Al.
34. For extended discussion of the science, ethics, and public policy of embryonic stem cell research and human cloning, see president's council on BlO- ethics, monitoring stem cell research (2004) [hereinafter monitoring stem Cell Research], and President's Council on Bioethics, Human Cloning and Human Dignity: An Ethical Inquiry (2002) [hereinafter Human Cloning and human dignity].
35. See also, Keynote Address: Preparing the Groundwork for a Responsible Debate on Stem Cell Research and Human Cloning, 39 NEW ENG. L. REV. 479, (2005).
36. The most comprehensive study to date, conducted by RAND in 2003, estimated that there are 400,000 or so embryos in cryopreservation, only 2.8% of which have been formally designated for donation.
37. See David I. Hoffman et al., Cryptopreserved embryos in the United States and their availability for research, 79 FERtility & Sterility 1063 1068(2003).
38. See Robert Lanza & Nadia Rosenthal, The Stem Cell Challenge, SCI. AM., June 2004, at 92.
39. In making his stem cell funding decision, President Bush implicitly rejected the argument that because the embryos used in stem cell research are capable of "twinning," they are not yet stable individuals, and thus not entitled to substantial moral respect. "Twinning" is the process by which cells that become disarticulated from the embryo sometimes, through a process of restitution and regulation, resolve themselves into a new, whole organism. It is believed that twinning occurs in very few cases; monozygotic twins are rare, accounting for only 1 in 240 births. President Bush may have been moved by the argument that, as a biological matter, " indivisibility" is not regarded as a necessary criterion for individuation in an organism. Other species are clearly classified as individual organisms, despite their capacity for the biological equivalent of twinning (for example, flatworms). Rather, organisms are defined according to the level of integration and organization of their constituent parts. Human embryos show highly integrated organization, specialization, and differentiation well before the blastocyst phase of development (that is, when they are used in stem cell research). Accordingly, there is strong support for the proposition that a blastocyst is clearly an individuated organism-that is, a whole, individual member of the human species.
40. See, e.g. Louis Guenin, (arguing in favor of embryo research on other grounds). Moreover, opponents of the twinning argument cite recent research (showing a dramatic increase in incidence of monozygotic twinning after preimplantation genetic diagnosis) to support the notion that monozygotic twinning is caused by an extrinsic disruption (for example, blastomere biopsy, as performed in PGD), and is not an intrinsic quality of the early embryo.
41. See Bush, supra note 16.
42. President Bush has also expressed several other ethical concerns about human cloning for biomedical research, including that its practice makes reproductive cloning inevitable (as the only rstep for that procedure is a transfer of the cloned embryo to a woman's uterus), that it represents an unprecedented step toward more refined techniques of engineering human organisms with a preselected genetic constitution, and that the massive number of ova required to conduct cloning research creates dangerous incentives to exploit women, particularly poor women, as sources.
43. A prominent proposed characteristic for this purpose is the "primitive streak"-a biological structure that marks the location of the vertebral column and indicates the anterior-posterior axis of the organism (though recent evidence suggests that polarity may be established much earlier, perhaps by the locus of penetration of the egg by the sperm). The primitive streak also marks the moment after which "twinning" is no longer possible. Other suggested capacities marking personhood include the nervous system, the brain, and more mature human somatic form. For a review of these arguments and rejoinders to them, see monitoring Stem Cell Research, supra note 21.
44. For an extended exploration of this argument, see Gilbert Meilaender, Spare Embryos, wkly. standard, Aug. 26-Sept. 2,2002, at 25.
45. See, e.g., Julian Savulescu, The Embryonic Stem Cell Lottery and the Cannibalization of Human Beings, 16 bioethics 508, 529 (2002) ("ES cell technology stands to benefit everyone...It is this property that may make it reasonable to kill some embryos to conduct ES cell research even if the embryo is a person."). One might take issue with the claim on its own terms in light of the speculative nature of the promise of embryonic stem cell research compared to the certainty of the destruction of the embryonic human life on which it depends. Also, the possibility that other non-embryonic sources of pluripotent cells-for example, adult stem cells, or reprogrammed adult cells-might yield similar therapies further complicates the utilitarian calculus in this context.
46. For a discussion of this debate and the various actions taken by Congress and the White House
47. see O. Carter Snead, The Pedagogical Significance of the Bush Stem Cell Policy: A Window into Bioethical Regulation in the United States, 5 yale j. Health Pol'y l. & Ethics 491 (2005).
48. Bush, supra note 16.
49. The President's Council on Bioethics explained the process by which an eligible cell line becomes available for use: The process of establishing a human embryonic stem cell line, turning the originally extracted cells into stable cultured populations suitable for distribution to researchers, involves an often lengthy process of growth, characterization, quality control and assurance, development, and distribution. In addition, the process of making lines available to federally funded researchers involves negotiating a contractual agreement (a "materials transfer agreement") with the companies or institutions owning the cell lines, establishing guidelines for payment, intellectual property rights over resulting techniques or treatments, and other essential legal assurances between the provider and the recipient Monitoring Stem Cell Research supra note 21, at 43.
50. The recently announced Phase I clinical trials for embryonic-stem-cell- based therapies sponsored by Geron use Bush-approved cell lines. Peter Benesh, Stem Cell Companies
51. See Signs of Hope, Obama's Position a Plus with Fewer Restrictions, Investor's Bus. Daily, Feb. 9,2009, at A8.
52. See Exec. Order No. 13,435, 72 Fed. Reg. 34,591 (June 20, 2007); President's Message to the Senate Returning Without Approval the "Stem Cell Research Enhancement Act of 2007," 43 weekly comp. pres. doc. 833 (June 20, 2007).
53. See, e.g., Paolo De Coppi et al., Isolation of amniotic stem cell lines with potential for therapy, 25 Nature Biotech. 100 (2007).
54. See Takahashi et al. supra note 19.
55. Junying Yu et al., Induced Pluripotent Stem Cell Lines Derived from Human Somatic Cells, 318 science 1917 (2007). The world's leading stem cell researchers hailed the development of these iPS cells as groundbreaking because these new cells were easier to produce than embryonic stem cells, they appeared to have all the characteristics of their embryonic counterparts, they were immunocompatible with the donor of the reprogrammed skin cell, and they were ethically uncontroversial in that their derivation required neither an embryo nor human ova. Some have raised safety concerns about the kinds of genes used (some were oncogenes associated with formation of tumors) and the viral vectors used to introduce the genes. Defenders of the research respond that embryonic stem cells have been associated with the formation of tumors. In any event, several papers have been published achieving the same results without using either the controversial oncogenes or viral vectors (retroviruses). Very recently, a paper was published describing a technique for reprogramming adult cells without the need for any viral vector at all (thus removing a key safety concern).
56. See knut et al.,piggyBac transposition reprograms fibroblasts to induced pluripotent stem cells, nature, Mar. 1, 2009, at 1.
57. Exec. Order No. 13,435, 72 Fed. Reg. 34,591 (June 20, 2007).
58. Id.
59. Id.
60. Id.
61. See, e.g.. Letter from Bernard A. Schwetz, Acting Principal Deputy Comm'r, Food & Drug Admin., to Senator Edward M. Kennedy (Sept. 5, 2001), available at http://www.fda.gov/oc/stemcells/kennedyltr.html ("Thus, as intended and practiced, the FDA regulation of xenotransplantation products, while aimed first and foremost at safeguarding the public health, should not impose a substantial impediment to xenotransplantation product development, including HEPSC that are produced by culture in vitro with mouse cells.").
62. Human Cells, Tissues, and Cellular and Tissue-Based Products, 70 Fed. Reg. 29,949 (May 25,2005) (interim final rule);
63. Fed. Reg. 33,667 (June 19,2007) (final rule).
64. Sec'y of Health & Human Servs., Charter, Secretary's Advisory Committee on Human Research Protections (Sept. 25, 2008), available at http://www.hhs.gov/ ohrp/sachrp/charter.htm.
65. See PRESIDENT'S COUNCIL on BlOETHICS, REPRODUCTION and RESPONSIBILITY: The Regulation of New Biotechnologies 131 (2004) [hereinafter Reproduction and Responsibility].
66. United Nations Declaration on Human Cloning, G.A. Res. 59/280, U.N. Doc. A/RES/59/280 (Mar. 23, 2005).
67. See generally Rev. Robert John Araujo, The UN Declaration on Human Cloning: A Survey and Assessment of the Debate, 7 nat'l Cath. bioethics Q 129 (2007).
68. Nigel M. de S. Cameron & Anna V. Henderson, Brave New World at the General Assembly: The United Nations Declaration on Human Cloning, 9 Minn. J.L. Sci. & Tech. 145 (2008).
69. Press Release, Gen. Assembly, General Assembly Adopts United Nations Declaration on Human Cloning by Vote of 84-34-37, U.N. Doc. GA/10333 (Aug. 3, 2005). Some of the abstaining nations later came forward in support of the declaration.
70. Universal Declaration on Bioethics and Human Rights, UNESCO Gen. Conference Res. 33/36 (Oct. 19, 2005).
71. From 2004-2005, the Author led the U.S. delegation for the negotiation of the Universal Declaration on Bioethics and Human Rights. Currently, the Author is serving a four-year term as a member of UNESCO's International Bioethics Committee, which, among other things, is charged with monitoring the implementation of all UNESCO instruments relating to bioethics.
72. Id.
73. For a full discussion of the negotiation process and the ways in which the final declaration signals respect for human life, broadly understood see O. Carter Snead, Assessing the Universal Declaration of Bioethics and Human Rights: Implications for Human Dignity and the Respect for Human Life, 7 NAT'L CATH. BIOETHICS Q. 53 (2007).
74. From October 2002 until July 2005, the Author served as General Counsel to the President's Council on Bioethics.
75. Exec. Order No. 13,237, 66 Fed. Reg. 59,851 (Nov. 28, 2001).
76. Human Cloning and Human Dignity, supra note 21.
77. Id. at 202.
78. Id.
79. Monitoring Stem Cell Research, supra note 21.
80. Reproduction and Responsibility, supra note 44.
81. Id. at 207-209, 215.
82. Presidents Council on Bioethics, alternative Sources of Human Pluripotent Stem Cells, at x (2005).
83. Supra notes 17,34.
84. Following the defeat of the bill in the House (it had passed the Senate with 70 votes), President Bush issued the Executive Order discussed above, supra notes 37-40 and accompanying text, which included essentially the same directives for HHS.
85. Pub. L. No.109-242,120 Stat. 570 (codified at 42 U.S.C. 289g-2).
86. Reproduction and Responsibility, supra note 44, at 218-224 (recommending that "Congress should consider some limited targeted measures... proposed as moratoria").
87. Consolidated Appropriations Act, 2004, Pub. L. No.108-199, § 634, 118 Stat. 3, 101 ("None of the funds appropriated or otherwise made available under this Act may be used to issue patents on claims directed to or encompassing a human organism.")
88. see also, supra note 44, Reproduction and responsibility at 162-63 ("Recently, Congress enacted a measure effectively prohibiting the issuance of patents on human organisms. The Consolidated Appropriations Act of 2004 provides, 'None of the funds appropriated or otherwise made available under this Act may be used to issue patents on claims directed to or encompassing a human organism.' As further indication of the intended scope of this provision, the manager's statement for this amendment points to a June 22, 2003, colloquy wherein Rep. David Weldon (the amendment's sponsor) assured Rep. David Obey (the ranking minority member of the House Committee on Appropriations) that the amendment 'would not interfere' with any existing patents on human genes or human stem cells. Weldon further noted that the purpose of the amendment was to affirm that 'human life in any form should not be patentable.' The Weldon Amendment thus proscribes the patenting of human organisms at any stage of development. It will reffective for the duration of the relevant appropriations period, namely, for the fiscal year ending September 30, 2004. To continue in affect, it would have to be included in subsequent appropriations bills or be enacted as a freestanding, permanent law." (internal citations omitted)). The Weldon Amendment has been reauthorized every year since its enactment.
89. Written statement from Daniel J. Bryant, Assistant Att'y Gen., Office of Legislative Affairs, U.S. Dep't of Justice, to the H. Subcomm. on Criminal Justice, Drug Policy & Human Resources of the Comm. on Government Reform, 107th Cong. (May 15, 2002), available at http://www.nrlc.org/killing-embryos/ Justice-Dept-on-cloning.pdf (noting, among other things, that the prohibited action, "transfer of an embryo to a uterus," was routinely done with IVF embryos, which were impossible to distinguish from cloned embryos in vitro, and observing that "once a pregnancy were established, any government-directed attempt to terminate a cloned embryo in utero would create problems enormous and complex" (internal quotations omitted)).
90. Letter from George W. Bush, U.S. President, to Harry Reid, Majority Leader of U.S. Senate (May 3, 2007), available at http://www.nrlc.org/Records/ PresidentBushtoReidVetoWarning.pdf;
91. Letter from George W. Bush, U.S. President, to Nancy Pelosi, Speaker of U.S. House of Representatives (May 3, 2007), available at http://www.nrlc.org/ Records/PresidentBushToPelosiProLifeVetoes.pdf.
92. See, e.g.. Address Before a Joint Session of the Congress on the State of the Union, 41 weekly comp. pres. doc. 126 (Feb. 2, 2005);
93. Address Before a Joint Session of the Congress on the State of the Union, 42 weekly comp. pres. doc. 145 (Jan. 31, 2006);
94. Address Before a Joint Session of the Congress on the State of the Union, 44 weekly comp. pres. doc. 117 (Jan. 28, 2008).
95. There are, obviously, many different permutations of this argument. One variation is a "developmental" approach to moral status, which accords increasing moral worth to the fetus (and its interests as against the claims of the mother) as it progresses through the gestational stages. Other arguments focus on the dependency of the fetus on the mother for bodily support, and weigh its claim to life more heavily in comparison with the mother's autonomy rights as it becomes more biologically independent (that is, "viable"). As Gilbert Meilaender has observed, these arguments about "personhood" and "bodily support," though analytically distinct, are deeply intertwined. See meilaender, supra note 1, at 114.
96. President Bush took the position that a woman has the right to choose to terminate a pregnancy resulting from rape or incest.
97. See Interview With the Danish Broadcasting Corporation, 41 weekly comp. pres. DOC. 1099,1101 (June 29,2005).
98. Both Justice Ginsburg and Reva Siegel have sought to justify the right to abortion on sex equality grounds.
99. See Gonzales v. Carhart, 550 U.S. 124,172 (2007) (Ginsburg, J., dissenting) (arguing that the right to abortion protects "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature");
100. Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 emory L.J. 815 (2007).
101. It bears noting that since Roe v. Wade, the Supreme Court has effectively reserved to itself the principal responsibility to define the contours of the law of abortion. The abortion precedents of the Supreme Court facing the Bush Administration upon its arrival in 2001 strongly privileged the pregnant woman's interests over those of the fetus, allowing, for example, a woman to terminate her pregnancy at any gestational stage whenever she and her abortion provider concluded that it was in the interests of her health-defined capaciously to encompass virtually all aspects of well being, such as "physical, emotional, psychological, [and] familial" concerns. Doe v. Bolton, 410 U.S. 179,192 (1973). The breadth of the health exception has been confirmed by several federal courts having invalidated limits on abortion because they lacked exceptions for "serious non-temporary threat[s] to a pregnant woman's mental health." Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 209 (6th Cir. 1997). Thus, for much of the Bush presidency, the political branches of government were only able to regulate the manner in which abortions were procured (for example, through the enactment of waiting periods, informed consent requirements, parental involvement laws, and the like). In April 2007, the Court upheld the first restriction on a particular abortion procedure in its history. The federal Partial Birth Abortion Ban Act lacked a health exception, but the law was upheld in part because the law did not ban alternative safe and effective abortion procedures.
102. See Carhart, 550 U.S. at 157-64
103. see also O. Carter Snead, Un- enumerated Rights and the Limits of Analogy: A Critique of the Right to Medical Self- Defense, 121 harv. L. rev. F. 1 (2007), http://www.harvardlawreview.org/forum/issues/120/may07/snead.pdf.
104. Memorandum on Restoration of the Mexico City Policy, 1 pub. papers 10 (Jan. 22, 2001).
105. 22 U.S.C. § 2151b(f)(l) (2006).
106. See Memorandum on the Mexico City Policy, 1 pub. papers 10 (Jan. 22,1993).
107. President Obama likewise rescinded the policy on his third full day in office. Mexico City Policy and Assistance for Voluntary Population Planning, 45 weekly comp. pres. DOC. 1 (Jan. 23, 2009).
108. Memorandum on the Transfer of Funds From International Organizations and Programs Funds to the Child Survival and Health Programs Fund, 38 Weekly Comp. Pres. Doc. 1660,1661 (Sept. 30,2002).
109. Todd S. Purdum, U.S. Blocks Money for Family Clinics Promoted by U.N., N.Y. times, July 23, 2002, at Al. The report of the China UNFPA Independent Assessment team recommended that "unless and until all forms of coercion in the PRC law and in practice are eliminated, no U.S. Government funds be allocated for population programs in the PRC." U.S. DEP't of state, report of the china UNFPA independent assessment team (2002), available at http://www.state.gOv/g/prm/rls/rpt/2002/12122.htm. Supporters of UNFPA vigorously dispute the assertion that it supports China's program of coerced abortion in any fashion, and thus oppose the Bush Administration's actions in this regard.
110. For example, he selected U.S. Senator John Ashcroft to lead the Department of Justice, and Wisconsin Governor Tommy Thompson as head of the Department of Health and Human Services, two agencies that play potentially significant roles in the abortion policy context.
111. Thomas B. Edsall, Grants Flow To Bush Allies On Social Issues, wash. post, Mar. 22, 2006, at Al.
112. 42 C.F.R. § 457.10 (2008). In 2007, efforts to codify this language in the bill reauthorizing SCHIP failed.
113. National Right to Life, Statement on Announcement by D.H.H.S. on Born- Alive Infants Protection Law, (Apr. 22, 2005), available at http://www.nrlc.org/ federal/Born-Alive-Infants/StatementonDHHS042205.html.
114. For a description of the U.S. government's efforts at this negotiation, compare Feminist Majority Found., Women's Rights Coalition Demands Withdrawal of Bush's Nomination of Sauerbrey (Oct. 18, 2005), http://www.feminist.org/news/ newsbyte/uswirestory.asp?id=9335 (criticizing the U.S. delegation)
115. and Janice Shaw Crouse, Concerned Women of Am., The United States Hangs Tough: Sauerbrey shows savvy and strength (Mar. 7, 2005), available at http://www.cwfa.org/articledisplay.asp?id=7622 (praising the U.S. delegation).
116. 18 U.S.C. § 1531 (2006).
117. Gonzales v. Carhart, 550 U.S. 124,142 (2007) (upholding the ban against a challenge of facial unconstitutionality).
118. For a discussion of the case, see Snead, supra note 69, at 5-6 (2007), http://www.harvardlawreview.org/forum/issues/120/may07/snead.pdf ("Carhart is particularly noteworthy in that the government interest cited for the abortion restriction was not the direct preservation of fetal human life. Rather, the law aimed to promote respect for human life, to prevent the coarsening and numbing of society's moral sense, and to safeguard the integrity of the medical profession by banning what Congress judged to be a particularly shocking and brutal procedure bearing a striking resemblance to infanticide. In other words, the purpose of the law was to prevent the moral degradation of society.").
119. Letter from George W. Bush to Harry Reid, supra note 64;
120. Letter from George W. Bush to Nancy Pelosi, supra note 64.
121. See Letter from George W. Bush to Harry Reid, supra note 64
122. Letter from George W. Bush to Nancy Pelosi, supra note 64.
123. Pub. L. No. 107-207,116 Stat. 926 (codified at 1 U.S.C. § 8 (2006))
124. 1 U.S.C. § 8(a).
125. U.S.C. § 8(b).
126. H.R. REP. NO. 107-186, at 9-11 (2001).
127. Pub. L. No. 108-212,118 Stat. 568 (codified at 18 U.S.C. § 1841 (2006)).
128. Child Interstate Abortion Notification Act, H.R. 1063,110th Cong. (2007).
129. Office of Mgmt. & Budget, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2005, at 456 (2004).
130. See, e.g., Address Before a Joint Session of the Congress on the State of the Union, 41 weekly comp. pres. doc. 126,129 (Feb. 2, 2005).
131. Interestingly, the majority opinion joined by Chief Justice Roberts and Justice Alito in Gonzales v. Carhart merely "assume[d]" the validity of the framework established by Planned Parenthood v. Casey for purposes of its reasoning. Conspicuously, it did not reaffirm Casey. See Gonzales v. Carhart, 550 U.S. 124,146 (2007).
132. 530 U.S. 914 (2000).
133. Address Before a Joint Session of the Congress on the State of the Union, 1 pub. papers 82, 84-85 (Jan. 28, 2003).
134. Address Before a Joint Session of the Congress on the State of the Union, 1 pub. papers 81, 88 (Jan. 20, 2004).
135. Address Before a Joint Session of the Congress on the State of the Union, 41 weekly comp. pres. doc. 126, 129 (Feb. 2, 2005).
136. Address Before a Joint Session of the Congress on the State of the Union, 42 Weekly Comp. Pres. Doc. 145,151 (Jan. 31,2006).
137. Address Before a Joint Session of the Congress on the State of the Union, 44 Weekly Comp. Pres. Doc. 117,120 (Jan. 28,2008).
138. See, e.g., Remarks to March for Life Participants, 44 weekly comp. pres. doc. 93 (Jan. 22, 2008).
139. 45 C.F.R. § 88.1 (2009) ("The purpose of this Part is to provide for the implementation and enforcement of the Church Amendments of the Public Health Service Act, and the Weldon Amendment (collectively referred to as the federal healthcare conscience protection statutes). These statutory provisions protect the rights of health care entities/entities, both individuals and institutions, to refuse to perform health care services and research activities to which they may object for religious, moral, ethical, or other reasons." (citations omitted)).
140. U.S. Dep't of Health & Human Servs., Regulation Proposed to Help Protect Health Care Providers from Discrimination (Aug. 21, 2008), http://www.hhs.gov/news/press/2008pres/08/20080821a.html.
141. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, § 508(d)(1)-(2), 118 Stat. 2809, 3163 (2004) [hereinafter Weldon Amendment]. President Bush signed the Weldon Amendment into law on December 8, 2004. The previous month, President Bush had sent a letter to the House Appropriations Committee Chair, Representative Bill Young, urging the retention of the provision in the omnibus appropriations bill.
142. See supra note 64.
143. E.g., Statement on the Terri Schiavo Case, 41 WEEKLY COMP. PRES. DOC. 458 (Mar. 17, 2005)
144. see infra Part II.D.2.
145. Gonzales v. Oregon, 546 U.S. 243, 250 (2006).
146. 21 U.S.C. § 829(a) (2006).
147. 21 C.F.R. § 1306.04(a) (2008).
148. 21 U.S.C. § 822(a)(2) (2006).
149. 21 U.S.C. § 823(f) (2006).
150. See 21 U.S.C. §§ 822(a)(2), 823(f), 824(a)(4) (2006) (specifying the factors).
151. Gonzales v. Oregon, 546 U.S. 243, 249 (2006).
152. See id. at 248-49.
153. Id. at 248-49, 275 (2005).
154. Presidents Council on Bioethics, Taking Care: Ethical Caregivtng in Our aging Society, at x (2005).
155. Id. at 210-13.
156. Id.
157. Id. at 214-22.
158. For a comprehensive discussion of the facts surrounding the Schiavo case, see O. Carter Snead, Dynamic Complementarity: Terri's Law and Separation of Powers Principles in the End-of-Life Context, 57 FLA. L. rev. 53, 55-71 (2005) [hereinafter Snead, (Surprising) Truth]
159. and O. Carter Snead, The (Surprising) Truth About Schiavo: A Defeat for the Cause of Autonomy, 22 const. comment. 383, 384- 86 (2005) [hereinafter Snead, (Surprising) Truth].
160. See In re the Guardianship of Schiavo, No. 90-2908GD-003, 2000 WL 34546715, at * 6-7 (Fla. Cir. Ct. Feb. 11, 2000) (granting authorization to Michael Schiavo to discontinue artificial life support for Theresa Marie Schiavo);
161. see also Schindler v. Schiavo, 780 So. 2d 176,180 (Fla. Dist. Ct. App. 2001) (upholding trial court's order). For an extended criticism of the trial court's disposition of this question, see Snead, (Surprising) Truth, supra note 118, at 393-403 (arguing that the court gravely misapplied the "clear and convincing evidence" standard).
162. See Bush v. Schiavo, 885 So. 2d 321, 324-28 (Fla. 2004).
163. See id. at 328-29 (citing 2003 Fla. Laws 418).
164. Id. at 337.
165. For an extended criticism of the Florida Supreme Court's decision, see Snead, Dynamic Complementarity, supra note 118, at 88-89 (2005).
166. An Act for the Relief of the Parents of Theresa Marie Schiavo, Pub. L. No. 109-3,119 Stat. 15 (2005).
167. Schiavo ex rel. Schindler v. Schiavo, 358 F. Supp. 2d 1161 (M.D. Fla. 2005), ajfd, 403 F.3d 1289 (11th Cir. 2005), reh'g denied, 404 F.3d 1282 (11th Cir. 2005), reh'g en banc denied, 404 F.3d 1270 (11th Cir. 2005).
168. Statement on the Terri Schiavo Case, 41 weekly COMP. pres. Doc. 458 (Mar. 17, 2005).
169. See, e.g., Geoffrey R. Stone, Religious rights and wrongs, Chi. Trib., July 26, 2006, at 27 ("What Bush describes neutrally as 'ethics' is simply his own sectarian religious belief.").
170. Address to the Nation on Stem Cell Research, 2 Pub. PAPERS 953 (Aug. 9,2001).
171. There are commentators, for example, who either reject or are not certain that human embryos are the moral equivalent of born persons, but nevertheless favor the Bush restrictions on federal funding for embryonic stem cell research, and who support a ban on all forms of cloning. Such individuals occupy all points on the political spectrum, from conservatives such as Leon Kass to liberals like Dan Callahan.
172. See, e.g., Leon Kass, Human Frailty and Human Dignity, new ATlantis, Fall 2004-Winter 2005, at 110, 118 ("And since I don't know whether the early embryo is or is not one of us,... I am inclined not to treat human embryos less well than they might deserve.");
173. Dan Callahan, Promises, Promises: Is embryonic stem-cell research sound public policy?, commonweal, Jan. 14, 2005, at 12,14 ("If the moral claims for the full humanity of the embryo are weak, the moral claims for an obligation to carry out embryonic stem-cell research are even weaker. Respect for embryos in any meaningful sense is, at the least, incompatible with destroying them solely for our medical benefit.").
174. For a debate as to whether the limits imposed by President Bush on the federal funding of embryonic stem cell research adversely affected U.S. competitiveness in the field, see the exchange between Eric Cohen and Jonathan Moreno in Stem-Cell Back and Forth, nat'l Rev. online, June 13, 2006, http://article.nationalreview.com/?q= MmQ2MmNlNTTzY2E2YjZjNTgyY2IyMVVM4YjY3NDJkODI=.
175. For strong criticisms of "conservative" bioethics, see r. Alta Charo, Passing on the Right: Conservative Bioethics is Closer Than it Appears, 32 J.L. med. & ethics 307 (2004)
176. Ruth Macklin, The New Conservatives in Bioethics: Who Are They and What Do They Seek?, hastings Ctr. Rep., Jan.-Feb. 2006, at 34
177. Susan M. Wolf, Law & Bioethics: From Values to Violence, 32 J.L. med. & ethics 293 (2004)
178. and Steven Pinker, The Stupidity of Dignity: Conservative bioethics' latest, most dangerous ploy, new republic, May 28, 2008, at 28.
179. For a defense of "conservative" bioethics, see Eric Cohen, Conservative Bioethics and the Search for Wisdom, hastings CTR. rep., Jan.-Feb. 2006, at 44
180. Yuval Levin, The Paradox of Conservative Bioethics, new atlantis, Spring 2003, at 53
181. and Gilbert Meilaender, In Search of Wisdom: Bioethics and the Character of Human Life (Jan. 2002), available at http://www.bioethics.gov/background/ meilaenderpaper.html.
182. See Monitoring Stem Cell Research, supra note 21.
183. For example, Ian Wilmut-the embryologist who cloned Dolly the sheep in 1997-and Jamie Thomson-the first researcher to successfully isolate human embryonic stem cell lines-have bom shifted their research to LPS cells.
184. See Sally Lehrman, No More Cloning Around, Sex Am., Aug. 2008, at 100, available at http://www.sciam.com/article.cfm?id=no-more-cloning-around.