Final Report (all chapters)

provides considerable ammunition to advocates of unfettered biomedical research, but is
incapable of accommodating the concerns expressed by other constituencies. 18
The professionalization of ethical dilemmas is reminiscent of the role played by probabilistic
risk assessment in public controversies over nuclear power plant safety in the 1970s. The narrow
focus on probabilities advocated by the engineering community and by the manufacturers of
nuclear technology contributed to transform what were momentous societal choices into mere
technical questions. In the process, probabilistic risk assessment reduced these choices to
questions much easier to manage by public administrators, and made concerns expressed by the
general public appear uninformed or downright irrational. 19
A third and final concern is the largely benign view of controversial medical developments
displayed by many bioethicists. Such an uncritically positive view of new biomedical research
casts considerable doubts on the ability of bioethics committees to credibly mediate among
conflicting societal interests. While bioethics advisory bodies do indeed understand themselves
as effective and competent mediators, 20 one may wonder whether the implicit support for many
controversial biomedical developments demonstrated by the discipline makes these advisory
bodies a suitable institution for crafting a broad societal consensus. Recent controversies over the
remuneration of bioethicists by private companies only reinforce this skepticism. 21
10.3 Elements of a Solution: Notice-and-Comment
Some could argue that the professionalization of ethical dilemmas is a bad idea, but that
there is need for novel mechanisms of public consultation. Section 553 of the Administrative
Procedure Act (APA) provides ample opportunities for anyone to comment on a proposed new
rule. In a nutshell, section 553 requires federal agencies to publish a proposed new rule in the
Federal Register. It then affords interested parties and the general public at least 30 days to
submit comments to the agency. The agency is required to respond in writing to all comments
and to take them into consideration in finalizing the proposed new rule.
Section 553, better known as notice-and-comment, would seem to provide a robust
mechanism for soliciting public input. As a matter of practice, however, this is not the case.
There are several important limitations to using notice-and-comment as a tool of public
consultation. The APA was passed short after the end of World War II in response to numerous
cases of what can only be described as arbitrary and capricious agency decisions. In the period
leading up to the passage of the APA, many federal agencies had a tendency to operate in a self-
18
19
20
21
Evans, Playing God? Human Genetic Engineering and the Rationalization of Public Bioethical Debate.
Thomas Dietz and Robert W. Rycroft, The Risk Professionals (New York: Russell Sage Foundation, 1987).
Susan E. Kelly, "Public Bioethics and Publics: Consensus, Boundaries, and Participation in Biomedical Policy,"
Science, Technology and Human Values 28, no. 3 (2003); Jonathan D. Moreno, Deciding Together. Bioethics
and Moral Consensus (New York: Oxford University Press, 1995).
Carl Elliott, "Six Problems with Pharma-Funded Bioethics," Studies in the History and Philosophy of Biological
and Biomedical Sciences 35 (2004).
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