As life-saving medical technology advanced in the second half of the 20th century, doctors and families faced a thorny decision, one with heavy legal and ethical implications: How should we define when life ends? Cardiopulmonary bypass machines can continue pumping blood and ventilators can maintain breathing long after the patient’s normal ability to perform this vital function has ceased.
After decades of deliberation among physicians, bioethicists, attorneys, and theologians, in 1981 a US presidential commission settled on a scientifically derived dividing line between life and death that has, more or less, remained ever since: a person was considered dead when the entire brain — including the brainstem, its most primitive part — was no longer functioning, even as other vital functions could be maintained indefinitely with artificial life support.
In the decades since, the committee’s criteria have served as the basis for legislation in most states adopting brain death as a standard for legal death.
Now, in reverse Roe v. Wade And with dozens of states rushing to impose abortion restrictions, American society is engaged in a chaotic race to define the other pole of human existence: When exactly does human life begin? The time of conception, the indication of heartbeat, the first breath, the ability to survive outside the womb with the latest technology?
We have been able to develop and apply uniform clinical standards for when life ends, but not when it begins, largely because of the legal and political turmoil surrounding abortion. And within two months, the US Supreme Court issued its opinion Dobbs v. Jackson Women’s Health OrganizationWith the exception of a long-standing federal right to abortion, state lawmakers are eagerly filling the void, seeking to enact various definitions of life that carry deep repercussions for abortion rights, birth control, and assisted reproduction, as well as civil and criminal reproduction. the law
“Courts have said that when life begins depends on who your state is conducting — whether they’re wrong or whether you agree with them,” said Mary Ziegler, a law professor at the University of California-Davis. Several books on the history of abortion.
Unlike the debate over death, which unfolds in fine medical and scientific detail, legislation is enacted when the building blocks of life reach a threshold that warrants government protection as human life generally ignores the input of mainstream medical professionals.
Instead, red states across much of the South and parts of the Midwest are adopting language crafted by elected officials that is informed by conservative Christian doctrine, often with little scientific basis.
Several Republican-led states, including Arkansas, Kentucky, Missouri and Oklahoma, have passed laws declaring that life begins at fertilization, a dispute that opens the door to pregnancy-related lawsuits. These include wrongful death lawsuits brought by disgruntled ex-partners on behalf of the estate of a fetus against doctors and women who terminate pregnancies or even have abortions. (One such case is pending in Arizona. Another reached the Alabama Supreme Court.)
In Kentucky, the law banning abortion uses the morally explosive term to define pregnancy as “the reproductive state of a human woman having a living unborn human being within her body throughout the embryonic and fetal stages of the unborn child from fertilization to full conception and delivery.”
Several other states, including Georgia, have adopted measures that equate life to the point at which a fetus’s newborn heartbeat can be detected by an ultrasound at about six weeks of pregnancy. Many such laws mischaracterize detectable electrical impulses at that stage as heartbeats, including Georgia, whose Department of Revenue recently declared that “any unborn child with a detectable human heartbeat” can be claimed as a dependent.
Supreme Court judgment in 1973 Roe v. Wade That establishing a constitutional right to abortion does not define a moment when life begins. The opinion, written by Justice Harry Blackmun, observed that the Constitution does not provide a definition of “person” although it does extend protection to persons born or naturalized in the United States. It does not depend on the state to adopt a theory of life when life begins, and concludes.
Instead, Ro Created a framework intended to balance a pregnant woman’s right to make decisions about her body with the public interest in protecting potential human life. This decision and a landmark ruling that followed generally recognized a woman’s right to an abortion to the point that medical professionals judged a fetus to be alive outside the uterus at about 24 weeks of pregnancy.
By being decisively overturned Ro In June, the Supreme Court’s conservative majority drew on legal arguments that have shaped another controversial end-of-life issue. Employed legal standards Dobbs — that the federal constitution has no right to abortion and that states can decide for themselves — is the same argument used in 1997 when the Supreme Court held that terminally ill people do not have a constitutional right to medically assisted dying. that decision, Washington v. GlucksburgThe majority opinion for is mentioned 15 times Dobbs and Justice Clarence Thomas concurring.
Often, the same groups that have led the fight to outlaw abortion have also challenged medical-assisted-death laws. even later Dobbs, so-called right-to-die laws are much less common than codification of state abortion rights. Ten states allow doctors to prescribe lethal doses of drugs for terminally ill patients. Doctors are still prohibiting meds.
James Bopp, general counsel of the National Right to Life Committee, which has been at the center of efforts to outlaw abortion, says that abortion and medically assisted dying, which he refers to as physician-assisted suicide, endanger society.
“Every human life has intrinsic value and is sacred,” says Bopp. “It’s the government’s responsibility to protect those lives.”
Both issues raise profound social questions: Can the government keep a patient on life support against her will, or force a woman to give birth? Can states prevent their own residents from traveling to another state to terminate a pregnancy, or prohibit out-of-state patients from coming for medically assisted dying? And who gets to decide, especially if the answer imposes a single religious view?
As there are legal ramifications that flow from determining a person’s death, to organ donation to inheritance, the rights inherent in a legally recognized zygote are potentially vast. Will a death certificate be issued for each lost pregnancy? Will the abortion be investigated? When will social security numbers be issued? How will the census be counted and congressional districts drawn?
Medical professionals and bioethicists caution that both the beginning and the end of life are complex biological processes that are not defined by a single identifiable moment—and are not amenable to the political arena.
“Unfortunately, biological phenomena are not events, they are processes,” said David Magnus, director of the Stanford Center for Biomedical Ethics.
Moreover, doctors ask “What is life?” or “What is death?” Magnus said: “Medicine can answer the question ‘When does a biological organism cease to exist?’ But they cannot answer the question ‘When does a man begin or end?’ Because these are metaphysical problems.”
Ben Sarbe, a doctoral candidate in Duke University’s philosophy department who studies medical ethics, echoed that view, describing the paradox of the heap, a thought experiment that involves placing one grain of sand on top of the next. The philosophical dilemma is: At what point do those grains of sand become something more—a pile?
“We have a hard time establishing a dividing line between what counts as an individual and what doesn’t count as an individual,” he said. “Many things count as life—a sperm counts as life, a person in a perpetual vegetative state counts as life—but does that constitute a person that we should protect?”
Even amid the controversy over the court’s abortion decisions, the 1981 federal statute that emerged from a presidential committee, the Uniform Determination of Death Act, is also under review. This year, the Uniform Law Commission, a nonpartisan group of legal experts that drafts adoption laws in multiple states, took on the task of revising the definition of death.
The group will consider sharpening treatment standards for brain death in light of advances in understanding brain function. And they will look to address lingering questions raised in recent years as families and religious groups have waged heated legal battles over ending artificial life support for patients with no brain wave activity.
Bopp, along with the National Right to Life Committee, is among those serving on advisory panels for the effort, along with an array of doctors, philosophers and medical ethicists. The concept of “personhood” that motivates the anti-abortion movement’s larger push for fetal rights is expected to be an underlying theme, though in the mirror image: When does a life-form cease to be a person?
Magnus, who also serves on an advisory panel, has no doubt the commission will reach a consensus, a calm solution rooted in science. What’s less clear, he said, is that the updated definition would have the same effect in today’s political climate, a permanent legal standard embraced statewide.
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