Showing papers by "Georgetown University Law Center published in 1992"

The Dangers of Difference

Abstract: It has been sixty years since the beginning of the Tuskegee syphilis experiment and twenty years since its existence was disclosed to the American public. The social and ethical issues that the experiment poses for medicine, particularly for medicine's relationship with African Americans, are still not broadly understood, appreciated, or even remembered.[1] Yet a significant aspect of the Tuskegee experiment's legacy is that in a racist society that incorporates beliefs about the inherent inferiority of African Americans in contrast with the superior status of whites, any attention to the question of differences that may exist is likely to be pursued in a manner that burdens rather than benefits African Americans. The Tuskegee experiment, which involved approximately 400 males with late-stage, untreated syphilis and approximately 200 controls free of the disease, is by any measure one of the dark pages in the history of American medicine. In this study of the natural course of untreated syphilis, the participants did not give informed consent. Stunningly, when penicillin was subsequently developed as a treatment for syphilis, measures were taken to keep the diseased participants from receiving it. Obviously, the experiment provides a basis for the exploration of many ethical and social issues in medicine, including professional ethics,[2] the limitations of informed consent as a means of protecting research subjects, and the motives and methods used to justify the exploitation of persons who live in conditions of severe economic and social disadvantage. At bottom, however, the Tuskegee experiment is different from other incidents of abuse in clinical research because all the participants were black males. The racism that played a central role in this tragedy continues to infect even our current well-intentioned efforts to reverse the decline in health status of African Americans.[3] Others have written on the scientific attitudes about race and heredity that flourished at the time that the Tuskegee experiment was conceived.[4] There has always been widespread interest in racial differences between blacks and whites, especially differences that related to sexual matters. These perceived differences have often reinforced and justified differential treatment of blacks and whites, and have done so to the detriment of blacks. Not surprisingly, such assumptions about racial differences provided critical justification for the Tuskegee experiment itself. Before the experiment began a Norwegian investigator had already undertaken a study of untreated syphilis in whites between 1890 and 1910. Although there had also been a follow-up study of these untreated patients from 1925 to 1927, the original study was abandoned when arsenic therapy became available. In light of the availability of therapy a substantial justification for replicating a study of untreated syphilis was required. The argument that provided critical support for the experiment was that the natural course of untreated syphilis in blacks and whites was not the same.[5] Moreover, it was thought that the differences between blacks and whites were not merely biological but that they extended to psychological and social responses to the disease as well. Syphilis, a sexually transmitted disease, was perceived to be rampant among blacks in part because blacks--unlike whites--were not inclined to seek or continue treatment for syphilis. The Dilemma of Difference In the context of widespread belief in the racial inferiority of blacks that surrounded the Tuskegee experiment, it should not come as a suprise that the experiment exploited its subjects. Recognizing and taking account of racial differences that have historically been utilized to burden and exploit African Americans poses a dilemma.[6] Even in circumstances where the goal of a scientific study is to benefit a stigmatized group or person, such well-intentioned efforts may nevertheless cause harm. …

Twenty years after. The legacy of the Tuskegee Syphilis Study. The dangers of difference.

Abstract: It has been sixty years since the beginning of the Tuskegee syphilis experiment and twenty years since its existence was disclosed to the American public. The social and ethical issues that the experiment poses for medicine, particularly for medicine's relationship with African Americans, are still not broadly understood, appreciated, or even remembered.[1] Yet a significant aspect of the Tuskegee experiment's legacy is that in a racist society that incorporates beliefs about the inherent inferiority of African Americans in contrast with the superior status of whites, any attention to the question of differences that may exist is likely to be pursued in a manner that burdens rather than benefits African Americans.

Treaty-Based Rights and Remedies of Individuals

Abstract: Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. As Chief Justice Marshall long ago observed, "[t]he province of the court is, solely, to decide on the rights of individuals .... " Accordingly, it is frequently said that treaties are enforceable by individuals in our courts only when they confer rights on individuals. Yet it is widely held that treaties, as international instruments, establish legal obligations and correlative legal rights only of the nations that are parties to them, not of individuals.

The "Gag Rule" Revisited: Physicians as Abortion Gatekeepers

Abstract: In this article, I explore this failure [of the therapeutic exception as a compromise device in federal abortion counseling regulations] with an eye toward its broader lessons about the social uses of medical discretion and the difficulty of achieving an abortion compromise in America. I begin by examining the legal underpinning beneath the widespread belief that the "gag rule" imposed a near-absolute ban on discussion of the abortion option. This conventional wisdom, I conclude, collapses on careful inspection. It fails utterly to account for the strong support to be found in the Title X regulations and their larger legal context for a therapeutic exception unconstrained by administrative or judicial definition. Next, I observe that this legal unboundedness would have empowered Title X clinic physicians (and perhaps others who do counseling) to exercise broad discretion over abortion access, under the rubric of medical indication.... By so doing, however, physicians would have become abortion gatekeepers. This would have raised difficult ethical and clinical questions about the extent to which medical judgment should be allowed to incorporate (and shield) socially-disputed moral choices. I briefly consider some of these questions, along with the countervailing appeal of preserving a measure of intimate freedom under medical cover. I then conclude by positing some connections between the moral infirmities of medical gatekeeping and the political failure of the therapeutic exception. I suggest, in essence, that this failure was ensured by a strong resonance between the exception's moral infirmities and the fears of the medical leaders, pro-choice activists, and abortion opponents who framed the public debate over the "gag rule." The potential breadth of the therapeutic exception went unrecognized and unexplored because professional and popular understanding of the abortion counseling regulations was molded by the activists who framed the debate...

Cross-Waivers of Liability

Abstract: Sheer pragmatism is developing a new principle in space law. That principle is that the parties to an activity in outer space, who stand to benefit from that activity, shall share some of the risk of that activity. These parties may enjoy more benefits from outer space activities if they themselves assume responsibility for damage that they may cause to the others involved in that same activity because litigation and insurance costs are saved. The National Aeronautics and Space Administration (NASA) has for a long time required contractual cross-waivers of liability between its launch operations and the owners of payloads being launched. 1/ The principle of crosswaivers is developing in other areas: launches under the U.S. Commercial Space Launch Act, activities under the space station agreement, space shuttle operations, NASA expendable launch vehicle (ELV) programs, and the principle is being adopted in launch contracts outside of the United States. The cross-waiver principle has been received so favorably that even wider adoption can be predicted in the future.