Abstract
One of the most significant and persistent debates in secular clinical ethics is the question of ethics expertise, which asks whether ethicists can make justified moral recommendations in active patient cases. A critical point of contention in the ethics expertise debate is whether there is, in fact, a bioethical consensus upon which secular ethicists can ground their recommendations and whether there is, in principle, a way of justifying such a consensus in a morally pluralistic context. In a series of recent articles in this journal, Janet Malek defends a positive view of ethics expertise, claiming that secular ethicists should comport their recommendations with bioethical consensus. In response, Nick Colgrove and Kelly Kate Evans deny the existence of a secular bioethical consensus; question why, even if it did exist, consensus should be considered a reliable way of resolving bioethical questions; and recommend a friendlier approach to clinical ethics based on the thought of H. Tristram Engelhardt Jr. In this article, I respond to Colgrove and Evans on all three points. In part one, I show there is a secular bioethical consensus but note it could be better consolidated and created through a more systematic and inclusive process. In part two, I argue that bioethical consensus is morally justified but note that this justification cannot be plausibly based upon claims that it only invokes moral principles available to or shared by all. In part three, I argue Engelhardt’s approach cannot be described as “friendlier” to clinical ethics because it is incompatible with many current healthcare laws and policies.
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Notes
Malek acknowledges that there are areas of clinical practice where there is no settled bioethical consensus and argues that, in those situations, ethicists should think through problems in a clear and systematic way, arriving at conclusions using accepted moral principles (Malek 2019, p. 95).
The Core Competencies Report admits that ethicists may not always circumscribe a range of ethically permissible options, but instead may occasionally make a singular recommendation that describes only one option as morally justified (American Society for Bioethics and Humanities 2011, p. 8).
See: (American Society for Bioethics and Humanities 2011, 2015 , 2017; Appelbaum 2007; Beauchamp and Childress 2013; Berlinger, Jennings, & Wolf 2013; Diekema, Mercurio, & Adam 2011; Dubler and Liebman 2011; Fletcher, Spencer, & Lombardo 2005; Ford and Dudzinski 2008; Hester and Schonfeld 2012; Jonsen, Siegler, & Winslade 2006; Kon et al. 2016; Lo 2009). Information about the core references and the commission tasked with selecting these references can be found here: https://heccertification.org/.
A perceptive reviewer raised the point that talk of moral epistemology is likely to run bioethicists into interminable philosophical disputes, for example, the internalist vs externalist debate. However, it is precisely these sorts of philosophical arguments that are bracketed by the middle-level approaches to moral theory described by John Arras. On middle-level approaches, it is only necessary that certain principles can acquire widespread agreement that they are morally weighty, not agreement over deeper philosophical issues about why they are morally weighty.
See Kostick et al. for a concise taxonomy of nudging types (Kostick et al., 2020).
I have several articles that argue against the increasing divide between religious and non-religious voices in bioethics (see, e.g., Brummett forthcoming). Part of what motivates this project is my sincere belief in the value of dissenting views in professional bioethics discourse.
One objection that Engelhardt has made to reflective equilibrium (one Colgrove and Evans may share) is that reflective equilibrium does not produce a single unique moral theory, but that many moral theories can be made to satisfy the criteria of reflective equilibrium (Engelhardt, 2009, p. 301). Engelhardt’s point results from his broader argument that all moral theories must ultimately rely upon foundational premises that are presumed, not proven. While I accept Engelhardt’s point that foundational premises are ultimately presumed, I give a three-part response arguing that reason still plays a significant role in the development and authority of bioethical consensus. First, the moral commitments of bioethical consensus must be made to satisfy the criteria of reflective equilibrium as outlined above. Second, bioethical consensus does not aim at a mere reflective equilibrium, but a wide reflective equilibrium, which requires secular bioethical consensus to also consider relevant non-moral (read scientific, social, metaphysical) commitments (Nichols, 2012). Wide reflective equilibrium opens additional rational standards for bioethical consensus to satisfy (blinded, 2021). Finally, I argue that Engelhardt’s own account faces several internal challenges because it cannot survive the application of the radical critique he levels against other moral approaches to clinical ethics (Brummett, forthcoming, 2021).
Engelhardt’s approach would have more implications than simply overturning current health law and policy that uses coercive force, but I focus on these laws and policies here because they help demonstrate the radical nature of his view for secular clinical ethics.
I am not arguing that all existing law and policy are ethically justified. I am arguing that some laws and policies are ethically justified and that bioethicists have had some influence in the creation of these laws and policies. It is those ethically justified laws and policies (laws and policies that derive their justification, in part, from bioethical consensus) that an Engelhardtean approach would seek to overturn. Describing some of these laws and policies that are incompatible with the principle of permission is the purpose of this third section.
Engelhardt is not a moral skeptic, he believes we can know moral truths but that we cannot demonstrate them to others using discursive reason (Engelhardt, 2000b).
Engelhardt places one caveat for pediatrics when he writes, “Choosing for [a child] does not violate the principle of permission, unless it is clear that [her] permission would not be given…[T]he most one can say with surety is that one should not directly act to affect [future] persons in ways that are very likely to be against their wishes.” As Hanson notes, this caveat should motivate parents to be so efficient in their abuse of a child that they either “kill it, or leave it with a mental handicap such that it never develops into a full person” (Hanson 2005, p. 197, footnote 1). I would add that brainwashing the child into accepting an unethical intervention (such as conversion therapy) as ultimately good for them is a third way for parents to avoid violating the principle of permission.
For example, Clint Parker argues secular ethicists should draw upon the full range of their comprehensive doctrines when making recommendations (Parker, 2019).
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Brummett, A. Affirming the Existence and Legitimacy of Secular Bioethical Consensus, and Rejecting Engelhardt’s Alternative: A Reply to Nick Colgrove and Kelly Kate Evans. HEC Forum 35, 95–109 (2023). https://doi.org/10.1007/s10730-021-09452-w
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DOI: https://doi.org/10.1007/s10730-021-09452-w