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Predictions in Bioethics for 2011

Original Article

My, how time flies. It seems only yesterday that I issued my predictions for 2010. That turned out pretty well. But the prediction business is never done. Time marches on, after all, and eventually old predictions become about as interesting as yesterday’s newspaper.

So, once again and with trepidation, I enter the Prognostication Zone to put my prophetic reputation on the line. But it’s blurry. Oh, wait: My glasses are smudged. Let me clean them. There: Yes, Yes! I can see into the mists of the future. What will become the present, and then the past, is coming into focus. You can take these predictions to the bank!—but I wouldn’t advise it. And always remember, these predictions are not necessarily what I would like to see happen, but what I believe will happen.

Patient Protection and Affordable Care Act

The big story in bioethics for 2011 will continue to be hand-to-hand political combat over the Patient Protection and Affordable Care Act—otherwise known as Obamacare. Usually, when a law is passed, well, a law is passed. But the contentiousness of the Obamacare political debate leading up to the law’s passage, its distinctly partisan flavor of the process, its continuing low poll approval ratings, and the recent election results, will keep the law in the political hot spot. Meanwhile, nearly half the states have sued to declare the provision requiring everyone to buy private health insurance to be unconstitutional. No, the issue definitely will not be finally settled in 2011. But the politics around Obmacare will be very busy. Here’s what will happen:

  • A bill repealing Obamacare will pass the House of Representatives, but will go nowhere in the Senate;
  • At least one court will declare the individual purchase mandate unconstitutional, probably two. (Two judges have already ruled that the law is constitutional.) All cases will be appealed. At least one appellate court will find the individual purchase mandate unconstitutional, setting up a decision by the Supreme Court in 2012. (After this article was written, this prediction came true: A Virginia federal judge ruled against the individual purchase mandate, stating that it “exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]”)
  • Even though the law does not have a severance clause keeping it in effect even if part of the statute is found to be unconstitutional, since the mandatory purchase provision does not go into effect until 2014, the courts will permit the government to enforce other Obamacare provisions and prepare regulations for the individual mandate during the appeal process.
  • The House of Representatives will refuse to fund the regulatory process needed to implement the law. That will spark a huge political fight when the Senate refuses to go along. The president will threaten to veto any bill that inhibits the law’s implimentation. This could lead to a government shutdown. In the end, the parties will compromise, which will slow down, but not prevent, Obamacare from moving forward.
  • Certain changes will be made to Obamacare around the edges. But these will not be substantive.
  • The ultimate fate of Obamacare will be decided in 2012. First, by the Supreme Court’s decision regarding the individual purchase mandate—without which the economics of the law won’t work. Second, Obamacare will also be a prime issue in the 2012 presidential election, its ultimate fate decided by which candidate wins. But you’ll have to wait for next year’s prediction to see how that all will turn out.

Stem Cell Research

Embryonic stem cell research (ESCR) and its funding will continue to be an important bioethical controversy in 2011. Currently, a judge has ruled that President Obama’s embryonic stem cell funding policy is illegal under a federal law, known as the Dickey-Wicker Amendment. (Dickey prohibits federal funding of research that destroys embryos and funding embryo creation for research.). Meanwhile, two human trials with embryonic stem cell-derived products have commenced. Meanwhile, non embryonic approaches are flourishing. Here is the big coming news:

The Court of Appeals will reverse the trial court and allow Obama’s ESCR funding policy to remain in place. The Supreme Court will not take the case. However, if I am wrong (yes, it happens), and the Court of Appeals affirms the trial court, the Supreme Court will take the case.

The Dickey-Wicker Amendment that forbids federal funding of destructive embryo research will be renewed for 2011. However, that prediction is predicated on the Court of Appeals ruling as I predicted above, or if the ruling has not been issued when it is before Congress. If the Court of Appeals overturns Obama’s funding policy, there will be a big fight. In that event, either Dickey will not be renewed or ESCR will be exempted from its provisions.

The Human ESCR Trials Will Show No Dramatic Results: These are small safety studies and there will neither be a big breakthrough nor a catastrophe resulting from the experiments.

Scientists will announce success in their ongoing attempts at human cloning. This will spark a demand for federal funding of human cloning research. A bill will be so introduced, but it will not pass.

Induced pluripotent stem cell research will move away from creating stem cells and to “direct reprogramming,”that is, turning one kind of cell into another without requiring the stem cell stage. This has been done with animal cells, and will also succeed in human cells. This success will blunt the fervor for ESCR.

Adult stem cell success will mount. But you didn’t need me to tell you that.

Miscellaneous

An energetic attempt will be made to pass legislation legalizing assisted suicide in Vermont. It will be a close thing, but will fail. Swiss assisted suicide clinics will grow more brazen. The threatened Swiss crackdown on suicide tourism will fail to materialize. The European Court of Human Rights will declare assisted suicide to be a right in limited cases. Tasmania will come very close to legalizing euthanasia, but ultimately won’t.

Donald Berwick, the health care policy advocate who supports health care rationing, will not be confirmed as the head of Medicare. His temporary recess appointment will lapse, and he will leave government service.

Attempts to regulate IVF in several states will be met by enraged opposition from the IVF industry and parents of children born using the process. None will pass. Meanwhile, Octomom will get her own reality television show. (I don’t really believe this, but I am testing my theory that no matter how outrageous your predictions get, they always catch up to you.)

As always, there will be surprises that even I couldn’t foresee. But you can bet that the CBC will be there, helping to keep bioethics ethical in an increasingly unethical world.

CBC special consultant Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a lawyer for the International Task Force on Euthanasia and Assisted Suicide.