The term, “bioethics” was coined in 1970 by American cancerologist V. R. Potter. In the few decades since, the field of bioethics has emerged as an important discipline. The field has attained a remarkable degree of public recognition in a relatively short period of time. The “right to die” cases such as In re Quinlan placed bioethical issues on the front pages. Although the discipline is of recent vintage, the past quarter century has witnessed a flurry of scholarly activity, creating a substantial body of bioethical literature. Moreover, the bioethics movement has manifested itself in institutional expressions. Universities and medical schools have added courses in bioethics to their curricula. In 1974, federal legislation and regulations mandated that federal grantees conducting human subjects research establish institutional review boards to safeguard subjects’ welfare, and even absent a legislative mandate numerous hospitals created ethics committees. Centers and institutes, devoted exclusively to the study of bioethical issues, have been founded.

In The Abuse of Casuistry Jonsen and Toulmin describe one view of moral reasoning as follows:

Whether or not all moral reasoning resembles “strands to a rope,” bioethics testimony certainly does. Bioethics testimony is eclectic, a composite of many loosely woven strands. Rarely, if ever, is bioethics testimony “a chain of unbreakable deductions.” Rarely is it “pure” ethics, much less pure normative ethics.

Professor Imwinkelried has boldly attempted to justify the admissibility of normative ethical expertise in the face of a legal evidentiary rule requiring a scientific basis for expert testimony. Because ethical testimony is inherently unscientific, Professor Imwinkelried prudently focuses his analysis on circumstances where evidentiary requirements are less strict; those involving the legislative rather than adjudicative function of courts and those in which substantive law overrides normally rigorous evidentiary requirements. While both proposals may have merit and are thoughtful and creative, Professor Imwinkelried ultimately fails to provide sufficient doctrinal support or persuasive rationale for his arguments.

Professor Imwinkelrieds argument for the admissibility of “expert” normative ethical testimony has two parts. The major proposition is that, when courts are engaged in legislative functions, they should be permitted to consider all sources of information. The assumption that apparently underlies this proposition is that nothing limits courts’ exercise of legislative powers.

The question of whether the normative testimony of ethics experts should be admissible under the rules of evidence has been the subject of much debate. Professor Imwinkelried's paper is an effort to get us, for a moment, to change that subject. He seeks to turn our attention, instead, to a means by which bioethics experts’ normative analyses might come before the court without regard to the rules of evidence - a means lying formally outside those rules’ jurisdiction. The court, he argues, may freely consider evidence from expert bioethicists so long as it is performing a legislative rather than an adjudicative function. The rules of evidence apply to the court's efforts to find the facts of a particular case, Imwinkelried argues, but they do not constrain the court's investigations relative to its creative law-making efforts.

Professor Imwinkelried is surely right: the propriety of bioethicists serving as expert witnesses in litigation is problematic, and, I would add, it should remain problematic. Such testimony most certainly does not belong everywhere it will be offered by lawyers and litigants in an effort to advance their interests. Yet in contrast to some commentators, Imwinkelried and I both see a place for bioethicists serving as expert witnesses, although we differ significantly on how to understand and justify this place. In any event, serious questions regarding the proper place for expert bioethicist testimony in the courtroom do exist, not only for law but also bioethics as well.

The threshold question regarding the prospect of bioethicists serving as expert witnesses would seemingly have to be: “could a bioethicist qualify as an expert witness under the controlling rules of evidence?” Imwinkelried, however, does not perceive any need to even entertain this question as he claims that “technical evidentiary standards are inapplicable when information is presented to a judge to permit the judge to perform… a legislative or law-making function.”

In the lead article in this symposium issue, Edward Imwinkelried follows other scholars in distinguishing among three types of tasks for ethicists serving as expert witnesses: (1) descriptive (e.g., addressing the existence and content of relevant codes of ethics or guidelines, or the correspondence, or lack of correspondence, between relevant codes or guidelines and the parties’ practices); (2) metaethical (e.g., clarifying concepts, critiquing the logic of a particular argument or position); and (3) normative (e.g., addressing what the standard or practice should be). He finds agreement that the admissibility of descriptive or metaethical evidence rests upon the usual criteria of helpfulness and reliability. He breaks new ground in arguing that normative evidence typically relates to the judge's legislative rather than adjudicative function and therefore need not satisfy the usual standards for admissibility in order to be considered.

I am an academically trained philosopher who has taught and written about medical ethics for three decades, who has done extra-mural ethics consultation in clinical and other settings for two decades, and who has served as an expert ethics witness in the courts for more than ten years. Trained as a traditional academic, none of these three pursuits have come easily. Like most philosophers, my education did not prepare me for such responsibilities. Indeed, regardless of a bioethicist's initial background - i.e., health care, law, theology or philosophy - it is invariably necessary to build upon foundational knowledges and abilities in gearing up for work as a health care ethics consultant.

Edward J. Imwinkelreid has prepared a remarkable overview of the work of the expert ethics witness from the point of view of the law of evidence. My perspective as a philosopher, an ethicist, and an expert witness, stands in contrast with his.

On November 2, 2004, California voters approved Proposition 69, “The DNA Fingerprint, Unsolved Crime, and Innocence Protection Act” by a margin of approximately 60 to 40 percent. Given the limited amount of information provided to voters during the initiative process, it is unclear how many of the yea-sayers were apprised of the full implications of this measure. Indeed, by voting “yes” on Proposition 69, California has elected to house the most radical and costly state criminal DNA database in the country. This dangerous expansion of California's database poses tremendous threats to civil liberties and social justice while offering little, if anything, by way of increasing the safety of its citizens.

Prior to November 2, California law required the permanent retention of DNA samples from felons convicted of serious, violent crimes. The new law expands the database to include DNA samples from all felons and individuals with past felony convictions - including juveniles - and, beginning in five years, all adults arrested for any felony offense.

The quality of end-of-life care in this country is often poor. There is abundant literature indicating that dying individuals do not receive adequate pain medication or palliative care, are tethered to machines and tubes in a way that challenges their dignity and autonomy, and are not helped to deal with the emotional grief and psychological angst that may accompany the dying process. While this is true for individuals in many settings, it seems to be especially true for individuals in nursing homes. This is somewhat puzzling given that (1) considerable resources have been devoted to bringing public attention to this problem, (2) we have the knowledge and expertise to provide such care, and (3) we have a government-financed benefit that covers this type of care - the Medicare hospice benefit (MHB).

While utilization of hospice care has increased during the last decade, there is considerable evidence that hospice care remains underutilized particularly in the long term care setting.

The normative approach to defining an ethic of a field, which focuses on one disciplinary field, requires modification in the consideration of a biodefense ethic to include not one discipline, but many. The consideration of an ethic in biodefense must capture issues in a multidisciplinary scope, including the ethical studies in the disciplines of medicine, sciences, technology, law, international relations, public health, environment, and war, each having their unique framework of ethical constructs.

An ethic of bioterrorism and biodefense raises issues which can be examined utilizing multidisciplinary ethical considerations. The disciplines of medicine, sciences, technology, law, international relations, public health, environment, and war each have a framework of ethical principles which are essential in the scope of ethics which are incident to bioterrorism and biodefense; the absence of any one of which would create a void in our understanding of the complexity of this subject.

Medical quarantines often threaten the civil rights of the persons whom they confine. This might happen in two ways. First, quarantines might inflict harsh conditions on their occupants; and, second, quarantines might be imposed in an arbitrary or indeed discriminatory manner. These concerns, moreover, are anything but fantastic. Infectious diseases, particularly in epidemic forms, commonly trigger retributive and discriminatory instincts, so that actual quarantines often impose inhumane, stigmatizing, or even penal treatment upon persons who are confined based on caprice or even prejudice.

But quarantines that impose no gratuitous hardships and that are applied pursuant to orderly and non-discriminatory procedures are theoretically possible and also practically available. And such well-run quarantines, especially when they are employed to combat epidemic diseases, cannot plausibly be said to violate the civil rights of the quarantined. Even the staunchest civil libertarian must accept that one person's liberty may be restricted when this is necessary for preventing harm to another.

An increasingly long line of high-profile scientific misconduct cases raises the question of whether regulatory policy ought to incorporate more rigorous sanctions for investigators and their institutions. Broad and Wade graphically describe these cases through the early 1980s. They continue to recent times with the cases of Evan Dreyer, Kimon Angelides and Robert Liburdy, Justin Radolf, and others. In addition, recent Congressional investigation into conflict of interest concerns surrounding consulting by National Institutes of Health scientists has raised further questions about ethical standards. The record of continuing scandal suggests that current policy may not be optimal for controlling scientific misconduct. Would an alternative policy better minimize its incidence and associated costs?

What should we expect of public policy governing misconduct by American scientists? Surely the public has a right to presume that its tax money is being spent wisely and that any economic rewards from taxpayer funded research are used prudently and in the public interest.

The legalization of physician-assisted suicide (PAS) remains a hotly debated issue throughout the United States, and continues to capture the attention of government officials at both the state and federal levels. While the practice is currently legal in Oregon, some federal lawmakers and officials from the U.S. Department of Justice have attempted to outlaw that state's practice through legislation (e.g., the Pain Relief Promotion Act of 1999), or through a strained interpretation of the federal Controlled Substances Act. And while several citizen groups throughout the United States have attempted but failed to legalize PAS through popular initiative, several state lawmakers have succeeded in specifically outlawing the practice. Yet even though physician-assisted suicide (PAS) remains unlawful in every state except Oregon, there is ample evidence that American physicians throughout the United States have participated in PAS by providing their terminally ill patients with lethal prescriptions.

Media coverage and statements by various Catholic spokespersons regarding the case of Terri Schiavo has generated enormous and deeply unfortunate confusion (among Catholics and non-Catholics) regarding Church teaching about the use of life-sustaining treatments. Two weeks ago, for example, I received a letter from the superior of a community of Missionary Sisters of Charity, who operate a hospice here in the United States The Missionary Sisters of Charity are the community founded by Mother Theresa, the 20th Century saint whose primary ministry was to rescue dying Untouch-ables from the streets of Calcutta and bring them into her convent where they were washed, sheltered, fed if they were able to eat, prayed for, and cherished. In other words, the sisters gave these poor souls the gift of a death with dignity. The order Mother Theresa founded has continued this ministry, running hospices in the United States and elsewhere for the homeless, the destitute, those dying of AIDS and poverty and drug addiction, and all those dying alone and otherwise unwanted.

Right to die legal cases in the United States have evolved over the last 25 years, beginning with the Karen Quinlan case in 1975. Different substantive and procedural issues have been raised in these cases, and society's thinking has changed as a result of the far more complex legal issues that appear today as opposed to the simplistic views raised in early landmark cases. Many of the early cases involved patients in a vegetative state, but more recently patients who were in a minimally conscious state have been the center of attention. Early cases involved the withdrawal of respirators and other sophisticated technology, but later cases centered on the withdrawal of artificial nutrition and hydration, and even whether it was permissible for competent patients to stop eating and drinking in a normal manner. Initial cases pitted families who argued for withdrawal of treatment, usually against the attending physicians and hospitals and/or the state or federal government, who argued for continuation of treatment.

In the fifteen-year-long public saga of the Terri Schiavo case, one oftcited regrettable aspect of her health care noted in the media was her lack of advance care planning. The withdrawal of her gastrostomy tube was per the consent of her husband, Michael Schiavo, based on the substituted judgment of what she would have desired in a persistent vegetative state (PVS). Her parents, the Schindlers, attempted to assert that ending treatment in her state (which they disputed as not being PVS violated her religious convictions.

Many people were upset by the protracted public scrutiny of this private matter - citing the Schindler's public angst, the indignity of Ms. Schiavo's protracted treatment, the interference of politicians, and the financial injustice of devoting so much time and money to this case. All these points are less meritorious than this simple fact: an incapacitated patient had a substituted judgment rendered by her spouse (who was not found to have a conflict of interest),with corroboration by other witnesses for this refusal, and without any compelling contradictory evidence from the once-competent patient.

Health care may be the most regulated industry in the United States, at least in terms of the volume of State and Federal laws and regulations that affect business practices. Lawyers who counsel health care clients often face a dilemma: is the client seeing legitimate advice about the legal limitations on his or her conduct, or is the client seeking to use the lawyer's skills to evade the law? The history of health care fraud prosecutions involving lawyers and other professional advisors in recent years makes this an issue of more than academic interest. The well publicized case of U.S. v. Anderson, in which health care counsel faced charges as co-defendants for purported kickback violations, the recent prosecution of Ernst & Young for allegedly aiding Medicare fraud on behalf of client hospitals, and the recent indictment and conviction of an in-house lawyer in a national durable medical equipment fraud case, make clear that the wrongful use of legal advice by health care clients can lead to significant criminal and civil charges against attorneys.