See it Now! Bioethics 2012

Fresh off a very successful year of predicting the future in 2011, I now find myself forced to once again risk my laurels, peer into my crystal ball, and tell you what will happen in the world of bioethics in 2012. What I foresee hurts my eyes and my heart, but a prophet must be honest. Please remember, the following predictions are what I see happening. They do not reflect what I want to happen.

Affordable Care Act, aka Obamacare

President Obama has not exactly been “The Bioethics President.” For the most part, his administration has seemed to downplay bioethical controversies and agendas.

The one notable exception—to use a much understated word—was passage in 2010 of the Affordable Care Act (ACA), or Obamacare, as it is generally known. The ACA is truly a transformative law. If it goes into full effect, it will alter in predictable and unforeseen ways the federal government’s relationship to the people, for better or for worse—depending on one’s point of view—centralizing the control over health care coverage and funding into the federal bureaucracy, and perhaps setting the stage for a future “single payer” type system throughout the country.

But Obamacare is not a done deal. It remains unpopular in most opinion polls, with some showing a majority for repeal. It is also mired in legal wrangling, with a case to be heard this spring in the Supreme Court of the United States to determine whether the law is, in whole or in part, unconstitutional.

So what will happen to Obamacare this year?

Prediction 1: Obamacare will not be repealed legislatively in 2012. Well, duh. The current government won’t repeal it, and the next one won’t come into being until 2013. Okay, okay. I’ll get onto something you don’t know.

Prediction 2: Obamacare’s Individual Mandate Will Be Declared Constitutional. This is the most important issue facing bioethics for 2012, so without turning this essay into a law review article, please let me explain my reasoning. The ACA legally requires all Americans to have health insurance or pay a penalty fine (a tax, according to the administration), known for purposes of discussion as the “individual mandate.” The argument over the individual mandate essentially boils down to apples versus oranges, law versus policy.

• Those who think the mandate is unconstitutional argue that the government does not have the constitutional authority toforce Americans to buy anything, and indeed that such a legal compulsion is unprecedented in American history.
• Stripped of its legal mumbo jumbo, defenders of Obamacare argue that the mandate is necessary policy, because without the mandate people will wait until they are sick before buying insurance, which would collapse the system financially.
• In my view, both assertions are correct.

That should mean the Supremes will rule against the mandate, right? No. Let me explain.

The Supreme Court has vastly expanded the power of the federal government since the 1930s. In so doing, the justices have often based their decisions as much on policy as on law—and then fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal expansion). Some call this phenomenon “judicial legislation,” but we won’t get into that here. Moreover, the justices generally come from what is sometimes called the “ruling class,”—people who graduated Yale, Harvard, Princeton, etc. — people who have faith in “experts” and technocratic solutions to societal problems. The rulings of the Court on controversial social and political issues often reflect the views of this subset of Americans more than those of the general population (not that the opinions of either should be relevant). While polls generally show a majority of Americans opposing Obamacare, the ruling class tends to support it.

With the above in mind, I believe the majority of the Supreme Court will rule that Obamacare’s purposes are laudable, that universal coverage is equitable and necessary for the country’s future, and that since the mandate is a necessary element of making the new law work, it is constitutional. That may sound like bootstrapping, but there it is.

My big clue was a November 2011 decision validating the individual mandate written by conservative Reagan-appointed Appeals Court Judge Lawrence Silverman. To wit: “The right to be free from federal regulation is not absolute and yields to the imperative that Congress be free to forge national solutions to national problems.” That’s policy, baby! Moreover, it encompasses a philosophy that places technocratic problem-solving above upholding limited government. With the coming decision, a new era will have fully dawned for the United States of America—even if Obamacare is later legislatively repealed.

Prediction 3: The Supreme Court Ruling Will Turn Obamacare Into One of the Election’s Biggest Issues: With the Supreme Court legally validating Obamacare, the law will become a huge political issue in the 2012 election. But even though majorities of people oppose the law currently, this will not redound to President Obama’s substantial detriment. To the contrary, people like a winner. Besides, many people today believe that what is “legal” is also “right.” Thus, the Supreme Court’s ruling will improve the law’s popularity, or at the very least, make people resigned to an Obamacare future.

Prediction 4: Obamacare Opponents Will Not Have Sufficient Electoral Success to Repeal the Law Legislatively in 2013: The only way Obamacare will be fully repealed in 2013 is for all of the following to transpire: the president is not reelected; the law’s opponents win a supermajority in the Senate (filibusters, don’t you know); and, opponents win the House. At most, only two out of three of those will happen. I predict only one.

Other Issues

I thought it was important to explain the bases of my predictions about Obamacare at some length, so I will be very brief in the rest of my prognosticating:

Assisted Suicide: This will be a big year in the assisted suicide battle internationally.

1. No state legislature will legalize assisted suicide.
2. The United Kingdom’s Parliament will not legalize assisted suicide.
3. Swiss “suicide tourism” will continue to make the news by growing increasingly radical in scope, perhaps including the suicide of someone who is mentally ill.
4. Massachusetts Voters Will Vote Yes to Legalize Assisted Suicide. (Some of my anti-assisted suicide colleagues will be angry at me for this prediction, stating we must always keep a positive face. I argue that the MA initiative can be beaten, but it will require opponents to pull out every stop. Let this prediction alarm us into a maximum effort.)
5. The Supreme Court of British Columbia will rule that there is a constitutional right to assisted suicide, forcing Canada’s Supreme Court to take up the case. The ultimate decision will not come until 2013.

Human Cloning/Stem Cell Research: Stem cell research has lost its punch as a public issue, and I expect 2012 to be very much like 2011. In other words, no new dramatic developments, with the possible exception of a human cloning breakthrough.
Miscellaneous: A few of these, like my IVF prediction, are easy. But I decided to go out on a few limbs:

1. IVF will continue to cause controversy as the boundaries and propriety of using the technique are applied in ever more radical ways. No regulations placing ethical parameters on assisted reproduction will be passed in the USA.
2. At least one state will permit organ donors to receive some form of compensation, disguised as expense reimbursement.
3. Scientists will grow primordial gametes from human stem cells.

Well, I’m exhausted and disheartened. But be of good cheer. In answer to Scrooge’s memorable question from A Christmas Carol, these are not the things that must be, but what might be. Facts change and the future remains fluid until it happens. If you don’t like the picture I have painted, work to prove me wrong. Please.

Wesley J. Smith, J.D., Special Consultant to the CBC, is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant to the Patients Rights Council.