Buck v Bell, one of the Supreme Court’s worst mistakes


Oliver Wendell Holmes Jr may have been the most influential justice of the past 100 years to serve on the US Supreme Court. He was a Civil War hero, a law professor, the oldest justice ever, and the subject of a best-selling biography and a Hollywood film.

Next year will mark the 90th anniversary of his most famous case, Buck v Bell. The Supreme Court ruled in an 8-1 decision that compulsory eugenic sterilization was constitutional. Holmes wrote the majority opinion in his characteristically crisp prose. As a direct result, many more states passed eugenic laws mandating sterilization of “feeble-minded” men and women. Nazi Germany modelled its even harsher laws on American legislation.

His words summing up the argument for eugenics have become notorious for their cruelty:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

The question that haunts the memory of Holmes is: how did he get it so wrong? How did America’s most eminent and admired jurist support an evil policy which played a part in the Nazis’ rationalisation of the Holocaust? Holmes may have been the only justice cited in defence of Nazi war criminals at the Nuremberg trials.

Holmes was not alone, of course. As we report in an article below, eugenics was a wildly popular policy in early 20th century America, especially amongst the better sort of people, like the Boston Brahmins into which Holmes was born. As we enter a new era of do-it-yourself eugenics with better technology for genetic editing, it is urgent to understand why our predecessors were so blind, lest we repeat their mistakes. 

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Should mental anguish be enough to qualify for euthanasia in Canada?


Canada’s legislators are still wrestling with how to frame a new euthanasia law. One interesting contribution to the debate comes from a senator who became a mental health advocate after her husband, a former member of Parliament, committed suicide in 2009. Senator Denise Batters suggests that psychological suffering should be excluded as a grounds for euthanasia.

"I have seen ... the devastating impact, not only for the individual that goes through that pain themselves ... but at the same time ... I've seen the devastating consequences that it can have on the immediate family members," she said in an interview with The Canadian Press.

"Canadians may support assisted suicide, but they want extremely strong safeguards and I think that when I talk to people about the possibility of psychological suffering being included as ... sole grounds for having access to physician-assisted suicide, they are horrified and stunned that could be a possibility," she said. “There aren't many, many thousands of people in this country who have lived through a period of severe anxiety and depression and come out the other side".

The senator is right. What people who are suffering psychologically need is more personal and better medical support, not a lethal injection. 

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Celebrating Dutch euthanasia


Oh no; not again. Sorry: about half of our articles this week are about euthanasia, most of them about the Netherlands. I know that there are other issues, but this time I shall blame the news cycle. NVVE, the leading Dutch right-to-die group, is celebrating 15 years of Dutch euthanasia this week.

Depending on your point of view, the festivities are either premature or long overdue. The law legalising euthanasia in the Netherlands came into effect on April 1, 2002, which means that NVVE is actually celebrating the beginning of the 15th year.

On the other hand, euthanasia was effectively legal in the Netherlands for decades before that. A 1991 government study, the Remmelink Report, found that in 1990 there had been 2,300 cases of voluntary euthanasia, 400 cases of assisted suicide, and 1,040 cases of involuntary euthanasia. That was 25 years ago, so perhaps that is a better baseline for the celebration. 

Legalisation clearly has drawbacks, though. The number of cases of illegal, involuntary euthanasia is no longer included in official government statistics. O for the candour of the Remmelink Report! 

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Skulduggery


I’m sure it’s just randomness and not something in the water, but often our newsletters seem devoted to a theme, be it euthanasia, or IVF, or stem cell research. This time, unfortunately, it’s skulduggery.

Below you can read about a Los Angeles doctor who has just been sentenced to 30 years in jail for prescribing powerful pain-killer to drug addicts, some of whom ended up dead. Then there’s another euthanasia scandal in Belgium in which a 37-year-old woman died at the hands of an incompetent doctorafter being diagnosed with autism. (Autism? Are you kidding?)

The most colourful, however, is the on-going controversy surrounding trachea surgeon Paolo Macchiarini, who made headlines for creating artificial windpipes with stem cells. It turns out that his research, his CV and his romantic life all involve a fair bit of unsubstantiated creativity. Some of his patients died, too.

No surprises here. Human nature being what it is, there are bound to be a few bad apples in the medical barrel.

But it should lead us to reflect that governments need to take the possibility of misconduct very seriously when they are crafting legislation for the new genetic technologies. An English academic recently wrote in The Guardian that “playing God with our genes … is a good thing because God, nature or whatever we want to call the agencies that have made us, often get it wrong and it’s up to us to correct those mistakes.”

But if it is people like the doctors above who are playing God, it’s very likely that they will make irreparable mistakes. If scientists want to sack God, they should think very carefully about the CVs of the persons who will be moving into his office. 

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US government to pay for sex resassignment surgery


The US Department of Health and Human Services has ruled that that transgender people are entitled to sex-change surgery provided under Medicare Advantage insurers. An Air Force veteran, Charlene Lauderdale, sought coverage for her transitioning surgery in November 2014 but it was denied because it was not the proper treatment for her, as she had been hospitalised four times for psychiatric problems. 

The background to this decision is instructive. For many years, Medicare refused to cover transgender surgery. But in May 2014 a HHS Appeals Board ruled that this exclusion was based on outdated, incomplete, and biased science and medicine.

It turns out that the board reached its decision in a rather unusual way. In 1981 Medicare described sex reassignment surgery as “controversial” and “experimental” and said that it should not be covered. When this was appealed in 2013, the Centers for Medicare & Medicaid Services (CMS) declined to defend the old determination. The only evidence presented to the appeals board was submitted by advocacy groups supporting the “aggrieved party”. The CMS presented not one sentence of evidence.

Our legal system is adversarial and its integrity depends on an honest clash between opposing points of view. Why did the CMS throw in the towel? Did it really believe that there is no scientific evidence whatsoever which might question the benefits of transgender surgery? It certainly exists.

In fact, a 2014 review about research into suicide and transgender population found “an unparalleled level of suicidal behavior among transgender adults”. This was compiled by the Williams Institute, at the UCLA School of Law, an LGBT think tank, and the American Foundation for Suicide Prevention.

Their conclusions are also quite sobering: “The prevalence of suicide attempts among respondents to the National Transgender Discrimination Survey (NTDS), conducted by the National Gay and Lesbian Task Force and National Center for Transgender Equality, is 41 percent, which vastly exceeds the 4.6 percent of the overall U.S. population who report a lifetime suicide attempt, and is also higher than the 10-20 percent of lesbian, gay and bisexual adults who report ever attempting suicide.”

Bioethics must always be based on evidence. Ignoring contrary evidence, as the HHS seems to have done, not only corrupts the legal process, it could do immense harm to vulnerable people.

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Plus ça change


The Atlantic recently published a feature about the early days of artificial reproductive technology. The headline was: “The First Artificial Insemination Was an Ethical Nightmare: The 19th-century procedure involved lies, a secrecy pledge, and sperm from a surprise donor”.

It turns out that the first pregnancy with artificial insemination (at least in the US) was in 1855 in New York but it ended in a miscarriage. The first successful pregnancy with the same method took place in Philadelphia in 1884.

The patient was a married woman whose husband was infertile because of venereal disease. Without seeking the consent of either husband or wife, the doctor anaesthetised her and inseminated her with the sperm of one of his medical students. The women never discovered the truth and the students were sworn to secrecy.

However, when her baby was a 25-year-old businessman one of the students published his recollections of the event (after contacting the child). As far as he was concerned, artificial insemination was a eugenic boon, “a race-uplifting procedure”, which would produce children of “wonderful mental endowments” instead of “half-witted, evil-inclined, disease-disposed offspring”.

The author of the article in The Atlantic was amused by the old-fashioned lies, secrecy and donor anonymity. But has any of that changed? Most children born from contemporary reproductive technologies are “genetic orphans”. Most parents shop for donors who will confer “wonderful mental endowments” upon their offspring. Plus ça change, plus c'est la même chose.

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Looking for a job in cancer research?


In his State of the Union address President Obama announced a cancer moonshot: an ambitious plan to cure cancer. "The same kind of concentrated effort that split the atom and took man to the moon should be turned toward conquering this dread disease," he said.

Oops. He didn’t say that. Richard Nixon did in his 1971 State of the Union address. “We want to be the first generation that finally wins the war on cancer,” then-Vice President Al Gore said in 1998. “For the first time, the enemy is outmatched.”

It’s not just the politicians who know how to cure cancer. Scientists make big promises as well.  In 2005 the Director at the National Cancer Institute, Andrew von Eschenbach, said “Our plan is to eliminate the suffering and death that result from this process that we understand as cancer, and we are committed to a goal of doing so as early as 2015.”

That commitment was made only ten years ago and cancer is still the second leading cause of death in the United States.

It’s great to feel optimistic, but one has the feeling that promises like these are made to distract voters from other issues. “It’s a bit utopian at this point,” agreed Barrie Bode, a professor at Northern Illinois University and a 20-year cancer researcher, told MarketWatch. “It’s like saying we need to fix the economy once and for all. Right, like that’s going to happen,” he said.

However, if you are looking for a job in cancer research, now looks like a very good time. 

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Monkeys are still not persons


Happy New Year! BioEdge is gearing up for a big year, with lots of news and more interviews with bioethicists from around the world.

Animal rights is one of the areas which we cover from time to time – which explains the photo above, one which I have been dying to use. It is a famous selfie of a male crested macaque named Naruto in an Indonesian wlldlife reserve.

British nature photographer David Slater placed the camera amongst the monkeys in 2011 and Naruto pressed the trigger. Later on the image appeared on Wikipedia without Slater’s permission, but Wikipedia refused to take it down, because Naruto was the “author”, not Slater.

In September PETA (People for the Ethical Treatment of Animals) became involved. It argued in United States District Court in San Francisco that Naruto held the copyright. On his behalf PETA wanted to licence the image and use the proceeds to protect his species. Implicit in its case was the notion that animal are also persons and have legal rights.

The bemused judge, William H. Orrick, disagreed. “While Congress and the president can extend the protection of law to animals as well as humans,” he wrote, “there is no indication that they did so in the copyright act.”

This was a blow for PETA, but its attorney was philosophical. “We will continue to fight for Naruto and his fellow macaques,” said Jeff Kerr. “As my legal mentor used to say, ‘In social-cause cases, historically, you lose, you lose, you lose, and then you win.’”

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Happy Christmas!


Happy Christmas! The staff of BioEdge will be taking a break over the holiday. Our next newsletter will be on January 8.

Thanks for all your support and suggestions during the year. We hope that BioEdge will continue to grow in 2016. 

Cheers,

Michael Cook  
Editor 

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What’s life worth, anyway?


Now that Australian euthanasia activist Philip Nitschke has burned his medical registration rather than give up promoting the right to die, he is tackling his Big Idea: rational suicide.

He is planning to hold a seminar in Melbourne next September to show that people do not have to be depressed or terminally ill to want to die. “The reality is, a portion of our population will suicide and I don’t think we should make it so hard,” Nitschke told The Guardian. He believes that bereaved spouses, long-term prisoners, and all old people should have access to lethal medications so that they can kill themselves.

Australia’s National Mental Health Commissioner, Professor Ian Hickie was appalled by Nitschke’s remarks and spoke out with unusual frankness:

“Nitschke has no understanding of mental health and related issues, and absolutely no empathy. He has demonstrated a lack of humanity and a lack of concern for those who find themselves in these situations and their families, and a complete lack of compassion for those who are socially isolated and trying to connect with their world. I find it a totally unacceptable and appalling idea that age is a proxy for the end of your useful life. To reinforce that is an abhorrent idea.”

However, Nitschke has raised – or rather revived, for the Greeks and Romans discussed the same topic – a good question. If life is really a good, can it ever be rational to take it? If it is not unconditionally good, why can’t we take it? What gives life any value? I can’t say that I have ever admired Nitschke’s ideas or his work, but without people like him, would we be asking these big questions? 

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