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University of Minnesota Law School




In this lecture I argue that modern bioethics was born at the Nuremberg Doctors' Trial, a health law trial that produced one of the first major human rights documents: the Nuremberg Code. Accepting this conclusion has significant consequences for contemporary American bioethics generally, and specifically in the context of our continuing global war on terror in which the United States uses physicians to help in interrogations, torture, and force-feeding hunger strikers.

The primary force shaping the agenda, development, and current state of American bioethics has not been either medicine or philosophy, but law, best described as health law. Like bioethics, health law is an applied field-in this case, law applied to medicine, biotechnology, and public health. Often the legal issues are raised in the context of a constitutional dispute, as in public debates about abortion, quarantine, the right to refuse treatment, and physician-assisted suicide. Other times health law involves the more routine application of common law principles to new technologies or techniques, as in medical malpractice litigation. Still other times it is in the form of a debate over the wisdom or effectiveness of statutes and regulations, as in human experimentation, drug safety, patient safety, and medical practice standards.

American bioethics has had a major positive impact on the way medicine is currently practiced in the United States, especially in the areas of dying patients' care, including advance directives (living wills and health care proxies) and ethics committees, and the establishment of rules governing medical research, including federal regulations to protect research subjects and establish institutional review boards ("JRBs"). American bioethics has probably exhausted what it can usefully accomplish in these limited spheres. In the only other major areas of bioethics work, the related fields of abortion, embryo research, and cloning, bioethics has had no real impact in debates that have been dominated by religion. Given this, I think it is fair to conclude that American bioethics is unlikely to have a real-world future without a significant reorientation of its focus and direction. I suggest that the most useful reformulation involves recognition and engagement with two interrelated forces reshaping the world and simultaneously providing new frameworks for ethical analysis and action globalization and public health. Most relevant for American bioethics is that globalization brings with it a new focus on international human rights law and its aspirations, as articulated in the Universal Declaration of Human Rights.

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