As life-saving medical technology progressed in the second half of the 20th century, physicians and families were faced with a thorny decision, with serious legal and moral implications: how to define the end of life?
Cardiopulmonary bypass machines could keep blood pumping, and ventilators could keep breathing long after a patient’s natural ability to perform these vital functions had ceased.
After decades of deliberation involving doctors, bioethicists, lawyers and theologians, a US presidential commission in 1981 established a scientifically established line between life and death that has more or less endured ever since: a person was considered dead brain – including the brainstem, its most primitive part – no longer functioned, although other vital functions could be maintained indefinitely by an artificial life support system.
In the decades that followed, the committee’s criteria served as the basis for most state laws adopting brain death as the standard of legal death.
Today, with the overturning of Roe v. Wade and dozens of states rushing to impose restrictions on abortion, American society is engaged in a chaotic race to define the other pole of human existence: when exactly does human life begin? At conception, the hint of a heartbeat, a first breath, the ability to survive outside the womb with the help of the latest technology?
The fact that we have been able to design and apply uniform clinical standards for the end of life, but not for when it begins, is due in large part to the legal and political maelstrom around abortion.
And in the two months since the United States Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization eliminating a longstanding federal abortion right, state lawmakers have rushed to jump into this void, seeking to codify various definitions of life into law. which have profound implications for the right to abortion, birth control and assisted reproduction, as well as civil and criminal law.
“The court said when life begins depends on who runs your state – whether they’re wrong or not, or whether you agree with them or not,” said Mary Ziegler, a law professor at the University of California-Davis who has written several books on the history of abortion.
Unlike the death debate, which has delved into exquisite medical and scientific detail, the legislative scramble to determine when the building blocks of life reach a threshold that warrants government protection, as human life has generally ignored the contribution of traditional health professionals.
Instead, red states in much of the South and parts of the Midwest are embracing language authored by elected officials that is informed by conservative Christian doctrine, often with little scientific basis.
A handful of Republican-led states, including Arkansas, Kentucky, Missouri and Oklahoma, have passed laws declaring life begins at fertilization, a claim that opens the door to a host of related litigation to pregnancy. This includes wrongful death lawsuits brought on behalf of an embryo’s estate by disgruntled ex-partners against doctors and women who terminate a pregnancy or even miscarry. (One such lawsuit is pending in Arizona. Another has reached the Supreme Court of Alabama.)
In Kentucky, the Abortion Ban Act uses morally explosive terms to define pregnancy as “the reproductive condition of the human woman consisting of having a living unborn human being in her body throughout the embryonic and fetal stages of pregnancy. unborn child, from fertilization to full gestation and childbirth.”
Several other states, including Georgia, have passed measures equating life to when an embryo’s budding heart activity can be detected by ultrasound, at about six weeks gestation. Many such laws incorrectly equate flickering electrical impulses detectable at this stage with a heartbeat, including in Georgia, whose Department of Revenue recently announced that “any unborn child with a detectable human heartbeat” can be claimed as a dependant.
The 1973 Supreme Court decision in Roe v. Wade who established a constitutional right to abortion did not define a time 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 protections to those born or naturalized in the United States. The majority of the court took note of the many disparate opinions between religions and scientists on when life begins, and concluded that it was not for states to adopt a theory of life.
Instead, Roe created a framework intended to balance a pregnant woman’s right to make decisions about her body with a public interest in protecting potential human life. This decision and a key decision that followed generally recognized a woman’s right to abortion up to the point where medical professionals deem a fetus viable to survive outside the womb, at around 24 weeks of age. gestation.
In decisively overturning Roe in June, the conservative Supreme Court majority relied on legal arguments that shaped another contentious end-of-life issue. The legal standard employed in Dobbs – that there is no right to abortion in the Federal Constitution and that the states can decide for themselves – is the same justification used in 1997 when the Supreme Court declared that terminally ill people had no constitutional right to medical abortion. assisted death. This decision, Washington v. Glucksberg, is mentioned 15 times in the majority opinion for Dobbs and an agreement by Judge Clarence Thomas.
Often, the same groups that led the fight to ban abortion have also challenged physician-assisted dying laws. Even after Dobbs, so-called right-to-die laws remain far less common than those that codify state abortion rights. Ten states allow doctors to prescribe lethal doses of drugs to terminally ill patients. Doctors are still prohibited from administering the drugs.
James Bopp, general counsel for the National Committee for the Right to Life, which has played a central role in efforts to ban abortion, said abortion and medically assisted death, which he calls medically assisted suicide assisted, endanger society.
“Each individual human life has inherent value and is sacred,” Bopp said. “The government has a duty to protect this life.”
Both issues raise deep societal questions: Can the government keep a patient on life support against their will or force a woman to give birth? Can states prohibit their own residents from traveling to other states to terminate a pregnancy, or prohibit out-of-state patients from seeking medically assisted death? And who decides, especially if the answer imposes a singular religious point of view?
Just as there are legal implications that flow from determining a person’s death, from organ donation to inheritance, the implied rights held by a legally recognized zygote are potentially vast. Will death certificates be issued for each lost pregnancy? Will miscarriages be investigated? When will Social Security numbers be issued? How will censuses be counted and congressional constituencies drawn?
Health professionals and bioethicists warn that the beginning and end of life are complex biological processes that are not defined by a single identifiable moment – and are ill-suited to the political arena.
“Unfortunately, biological events are not events, they are processes,” said David Magnus, director of the Stanford Center for Biomedical Ethics.
Moreover, asking doctors “What is life?” or “What is death?” can miss the point, said Magnus: “Medicine can answer the question ‘When does a biological organism cease to exist?’ But they can’t answer the question ‘When does a person start or end?’ because these are metaphysical problems.
Ben Sarbey, a doctoral student in Duke University’s philosophy department who studies medical ethics, echoed that perspective, recounting the paradox of the heap, a thought experiment that involves placing grains of sand on top of each other. . The philosophical dilemma is this: when do those grains of sand become something more – a heap?
“We’re going to have a hard time putting a dividing line that it counts as a person and it doesn’t count as a person,” he said. “Many things count for life – a sperm counts for life, a person in a persistent vegetative state counts for life – but does that constitute a person we should protect?”
Even as the debate over the court’s decision on abortion continues, the 1981 federal law that emerged from the findings of the presidential committee, the Uniform Death Determination Act, is also being revised. This year, the Uniform Law Commission, a nonpartisan group of legal experts that drafts laws for adoption in several states, set out to review the definition of death.
The group will consider refining medical standards for brain death in light of advances in understanding brain function. And they will seek to answer lingering questions raised in recent years as families and religious groups have fought heated legal battles to end artificial resuscitation for brainless patients.
Bopp, along with the National Right to Life Committee, is among those serving on advisory boards for the effort, along with a range of doctors, philosophers and medical ethicists. The concept of “personality” that permeates the broader push of the anti-abortion movement for fetal rights is expected to be an underlying, albeit mirror-image, topic: when a form of life ceases to be a person?
Magnus, who also sits on an advisory committee, has no doubt the commission will come to a consensus, a sober resolution rooted in science. What is less clear, he said, is whether, in the current political environment, this updated definition will have the same influential, enduring legal standard adopted in all states.