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Teaching Bioethics From a Legal Perspective

In Advocacy, Arts & Letters, Bioethics, Communication, Creative Writing, Creativity, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Teaching, Writing on July 6, 2011 at 8:33 pm

Allen Mendenhall

Last fall, I was assigned to teach a course called “Health & Medicine.”  Because I know little about health or medicine, I was concerned.  The subject of the course was writing, so I decided to craft a syllabus to facilitate classroom discussion and textual argument.  Here is the course description as stated on my syllabus:

Forensic discourse is one of three forms of classical rhetoric as defined by Aristotle.  It focuses on the relationship between language and law.  This semester we will explore forensic discourse in the context of health and medicine and consider the relationship of law to such issues as physician assisted suicide, surrogacy, cloning, informed consent, malpractice, and organ transplants.  Readings on ethics and philosophy will inform the way you think about these issues.

Your grade will not depend on how much you learn about law, but on how you use language to argue about and with law.  Because the facts of any case are rarely clear-cut, you will need to understand both sides of every argument.  Your writing assignments will require you to argue on behalf of both plaintiffs and defendants (or prosecutors and defendants) and to rebut the arguments of opposing counsel.  You will develop different tactics for persuading your audience (judges, attorneys, etc.), and you will become skilled in the art of influence.

During the semester, your class will interview one attorney, one judge, and one justice sitting on the Supreme Court of Alabama.

My students came from mostly nursing and pre-medical backgrounds.  A few were science majors of some kind, and at least two were engineering majors.

The students were also at varying stages in their academic progress: some were freshmen, some were sophomores, two were juniors, and at least one was a senior.  Throughout the semester, I was impressed by students’ ability to extract important issues from dense legal readings and articulate complicated reasoning in nuanced and intelligent ways.

I thought about this “Health & Medicine” class this week when I came across this article published by the Brookings Institution.  The title of the article is “The Problems and Possibilities of Modern Genetics: A Paradigm for Social, Ethical, and Political Analysis.”  The authors are Eric Cohen and Robert P. George.   Cohen is editor of The New Atlantis and an adjunct fellow at the Ethics and Public Policy Center.  George is McCormick Professor of Jurisprudence at Princeton University, the director of the James Madison Program in American Ideals & Institutions, and a fellow at the Hoover InstitutionHere is an abstract of the piece:

Imagine a future in which any person, man or woman, could engineer a child as a genetic replica of himself or herself. Or a future in which a child could be the biological fusion of the genes of two men or two women. Or a future in which every individual could know, with reasonable certainty, which diseases they would suffer in the months, years, or even decades ahead. Would this new genetic age constitute a better world, or a deformed one? The triumph of modern civilization, or the realization of modernity’s dark side?

With a subject as large and as profound as modern genetics, we face a major question from the start about how to approach it. We could take a scientific approach, examining the use of information technology in genomic research, or the latest advances in identifying certain genetic mutations, or the use of genetic knowledge in the development of medical technologies. We can take a social scientific approach, seeking to understand the economic incentives that drive the genetic research agenda, or surveying public attitudes toward genetic testing, or documenting the use of reproductive genetic technology according to socioeconomic class. We could take a public safety approach, reviewing different genetic tests and therapies for safety and efficacy with a view to identifying regulatory procedures to protect and inform vulnerable patients undergoing gene therapy trials. As we think about the genetic future, all of these approaches are valuable. Yet there are even more fundamental questions that need to be addressed. These concern the human meaning of our growing powers over the human genome.

The reason modern genetics worries, excites, and fascinates the imagination is that we sense that this area of science will affect or even transform the core experiences of being human—such as how we have children, how we experience  freedom, and how we face sickness and death. Like no other area of modern science and technology, genetics inspires both dreams and nightmares about the human future with equal passion: the dream of perfect babies, the nightmare of genetic tyranny. But the dream and the nightmare are not the best guides to understanding how genetics will challenge our moral self-understanding and our social fabric. We need a more sober approach—one that confronts the real ethical and social dilemmas that we face, without constructing such a monstrous image of the future that our gravest warnings are ignored like the bioethics boy who cried wolf.

What is the role of constitutional adjudication in confronting these dilemmas? In a word, that role should be limited. To be sure, American constitutional principles and institutions provide the frameworks and forums for democratic deliberation regarding bioethical and other important moral questions, but in most cases it will not be possible to resolve them by reference to norms that can fairly be said to be discoverable in the text, logic, structure, or historical understanding of the Constitution. Reasonable people of goodwill who disagree on these matters may be equally committed to constitutional principles of due process, equal protection, and the like; and it would be deeply wrong—profoundly anti-constitutional—for people on either side of a disputed question left unsettled by the Constitution to manipulate constitutional concepts or language in the hope of  inducing judges, under the guise of interpreting the Constitution, to hand them victories that they have not been able to achieve in the forums of democratic deliberation established by the Constitution itself. It would be a tragedy for our polity if bioethics became the next domain in which over-reaching judges, charged with protecting the rule of law, undermine the constitutional division of powers by usurping the authority vested under the Constitution in the people acting on their own initiative (as is authorized under the laws of some states) or through their elected representatives.

That abstract is available at this link.  If this paper had come out a few months ago, I would have assigned it to my students.

Having taught this class, and despite of my traditionalist leanings when it comes to literary pedagogy and curricula, I would submit that bioethics is an appropriate subject for introductory writing courses at the university level.

This subject raises interesting and troubling philosophical questions that are ancient and perennial, however cutting-edge they may seem at first blush.

It seems clear that bioethics could or should be taught in law school, but what about in university English departments?  Might writing about bioethics integrate studies in the humanities with studies in the hard sciences?  If so, is that not a good thing?

  1. I must agree with mr. Mendenhall’s assertion that the discussion of biothetics belongs in academia, certainly at the higher levels, if for no other reason that it is an issue that will, (without exception to those of us living in the developed world) effect each of us personally. As technology advances, so to does our ability to tweek, if not outright control, our medical future. For my part, I believe that ones purpose is not benefitted by the pre knowledge of their healthful life,  but rather, in the lack of knowledge. Imagine if  Benjamin Franklin knew at 20 that he would suffer from debilitating psoriasis, kidney stones and gout before he reached his middle age. Would he have toiled in the pursuit of freedom, or suspended his workings and taken up fishing? Ultimately, we are left begging the questing posed by Cohen and  George, would we be better off?

  2. I have taught my English composition classes in a similar way. I discovered that when you have students write about a topic, the only arguments they ever use are political and/or religious arguments. As someone who truly believes in interdisciplinarity, I set out to show my students that one should, and could, look at a topic from various positions: religious, philosophical, political, historical, economic, psychological, medical/biological, sociological, aesthetic, literary, etc. I then had my students investigate their topics through each of these subtopics, looking at both the pro and con arguments. Having done the research through these various subtopics within their topics, they then wrote a final research paper to create a negotiation between the pro and con arguments.

  3. Nathan and Troy,

    Thank you for your responses. I like your approach, Troy, and I can see how it would narrow students’ focus (sometimes students seem to be intimidated by having too much freedom of choice when it comes to deciding on paper topics). Nathan, I appreciate the Benjamin Franklin reference. I’ve walked by his grave every week this summer during my Philadelphia commutes. He’s on my way to Starbucks, as crude and disrespectful as that may sound (judging by the words on his tombstone, I’d say that Franklin probably wouldn’t have minded a light joke at his expense).

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