2013 Will Be a Contentious Year in Bioethics

by Wesley J. Smith, J.D., Special Consultant to the CBC

I have become so good at predicting the future in bioethics, I sometimes scare myself. I was very prescient in 2011, and nearly perfect in 2012. (I wish I had the same talent when it comes to the stock market.) And now, the fog is lifting, the coming year in bioethics coming into focus.

Oh! I see agitation. I see litigation. I see turmoil. I see controversy. Well, why should 2013 be different than any other year?

The Affordable Care Act

With the Affordable Care Act unlikely to be repealed—as I predicted last year—and with the law not going fully into effect until 2014, some might assume that this will be a year of relative quiet in Obamacare Land. Nope. Court dockets from around the country will be stuffed with lawsuits attacking the certain applications of the law.

Wait a minute, some might be saying: Didn’t the Supreme Court find the Affordable Care Act to be constitutional? Indeed—again, as I predicted—it did. So, what could now cause so much legal turmoil? In a phrase: Freedom of Religion.

Which requires a little background: At the end of 2011, the Department of Health and Human Services promulgated what I call the “Free Birth Control Rule” (FBCR)—a regulation requiring all employers with 50 or more full time workers, to provide health insurance providing free access to contraception, sterilization surgeries, and “morning after pills” (a suspected abortifacient). That sparked a huge controversy because the government refused to permit general exemptions for opponents of contraception, sterilization, and abortion, based on religion. This conscience controversy will be the biggest story in bioethics for 2013, with the outcome determining the parameters of religious freedom and the limits of government power.

The FBCR impacts three distinct categories of employers:

1. Churches, synagogues, mosques, and other “houses of worship” or cloistered faith communities with religious objections to the Rule: These were generally exempted and will not have to comply.

2. Religious organizations acting in the world with religious objections to the Rule: The government’s exemption to the FBCR was very narrowly drawn, most religious organizations, such as Catholic universities, charities, and benevolent groups, must comply regardless of their faiths’ dogmas opposing contraception or abortion. Forcing religious organizations to pay for procedures or drugs that they consider sinful created such an uproar that the rule was postponed as it applies to such non-profit organizations until August 1, 2013—allegedly to allow the government to find a reasonable accommodation.

3. Private Business Owners with Personal Religious Objections to the Rule: Businesses became obligated to provide free birth control and sterilizations on August 1, 2012. But owners of businesses with religious objections have filed scores of lawsuits claiming that the Rule violates their statutory rights under the First Amendment and the Religious Freedom Restoration Act—a law requiring the government to prove it has a “compelling interest” in forcing individuals to substantially violate their faith in order to comply with the law. The Obama Administration, in turn, argues that those who operate for-profit enterprises have no religious freedom rights at stake because for-profit enterprises are “secular activities” and because corporations can never be said to have a religious belief.

With the above admittedly bare-boned summary in mind, I predict:

1. The Obama Administration will not give significant relief from the Free Birth Control Rule to non-church religious organizations: I am convinced that the Obama Administration seeks to constrain freedom of religion to a far more restricted “freedom of worship.” Thus, since religious institutions such as universities and charities are acting among the wider public—not just on behalf of the institutions’ own religious co-believers—the Obama Administration will take the position that they must comply with terms of the FBCR, with only limited window dressing changes made to the Rule as it applies to religious organizations.

2. Many dissenting religious organizations will sue the government seeking relief from the rule based on the First Amendment.

3. The U.S. Supreme Court will accept an appeal to determine whether private business owners are protected under the terms of the Religious Freedom Restoration Act: The decision in that case will determine whether a corporation or other private business entities can be said to have a religious belief under some circumstances, and indeed, whether business owners have any religious rights at all in the context of operating their businesses. The mists are thick here, so I don’t think the final decision will be made until 2014.

Assisted Suicide/Euthanasia

This will be a very active year in assisted suicide/euthanasia news internationally. Here’s what I predict will happen:

1. The practice of Belgian euthanasia will grow increasingly extreme, sparking international headlines that will be quickly forgotten in the media’s biased reporting of the assisted suicide issue.

2. The Netherlands will permit euthanasia for the elderly “tired of life,” and doctors will increasingly be willing to euthanize those with mental illnesses (which is already legal there).

3. The United Kingdom’s Parliament will not legalize assisted suicide, despite widespread agitation to permit it. Neither will Australia.

4. Several U.S. state legislatures will see intense assisted suicide legalization efforts. All will fail, with the possible exception of Vermont. Assisted suicide advocates will file litigation in at least one state claiming that assisted suicide is a state right.

5. The highest court in 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 2014.

Other Issues

1. A concerted effort will be mounted in at least one state to outlaw human cloning. It will fail because of heated opposition by scientists, universities, biotech business lobbying groups, and the media.

2. Induced pluripotent stem cell (iPSC) research will continue to move forward at a very fast pace.

3. Geron’s defunct embryonic stem cell program will be purchased by another company and the human trials it started recommenced.

4. Another breakthrough toward learning how to engage in full human somatic cell nuclear transfer (SCNT) cloning will be announced.

5. Adult stem cell successes will continue in human trials, and still be generally underreported in the media.

6. State attempts to restrict funding of Planned Parenthood will ultimately fail in the courts.

7. Gestational surrogacy for pay will continue to be a growth industry, especially in developing countries.

And now for my final prediction. An issue will arise in 2013 in bioethics that no one expected. Even I, your humble expert prognosticator will be surprised.

I’ll report in December, as I always do, on how I did. But it is never wise to doubt me. You can take most of these predictions to the bank.

 
CBC Special Consultant Wesley J. Smith, J.D., is also a Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant for the Patient’s Rights Council.

 

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