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The man and the value of life. WGN. University of Cincinnati radio presents international leaders discussing the ethical technical and legal issues surrounding the extension of life through advances in medicine. The lectures are from a symposium sponsored by the University of Cincinnati College of Medicine as a part of the university's 100 50th anniversary celebration. Today we present the honorable gave it all back to line chief judge of the US Court of Appeals in Washington DC who will offer a legal perspective on the value of life judged as a law and will be introduced by Dr. Charles Gehring UC professor of neurology and program chairman of the Mann and life symposium.
Here now is Dr. airing. Judge David El-Baz a long time. And was born in Wisconsin. He's training at Northwestern University. And he's been on the bench for some two decades. Where he's arisen to. His present post as chief judge of the U.S. Circuit Court of Appeals District of Columbia since nineteen. Sixty two. He served as a visiting professor and lecture member of panels and leading medical centers. Particularly devoting his attention to the relationships between law and psychiatry. Currently he will be interested and know that he's a. Clinical professor of psychiatry at George Washington University. And instructor and same at Johns Hopkins.
Medical School. His involvement in the famed Durham. Decision and his continuing search for easier communication between jurisprudence and medicine. And his eager inquiry into behavior has brought his thoughtful work into international prominence. Judge Basil long as President elect of the American orthe a Psychiatric Association. The only layman to be so honored. Judge Baz along this afternoon will open the afternoon program. The paper and title medical progress in the legal process. That. Of the at. You or. Thank you doctoring. My colleagues on the panel. Ladies and gentlemen. That's six months ago.
The state of Israel sent a new investor to Washington. And in accordance with custom. He was invited to the press club. And. Still according to custom after the luncheon. They propounded questions to him. And when the chairman announced the last question. This question came in one of the reporters. He said Mr. Ambassador. What do you think of the idea. Of declaring the surplus. And giving it to the state of Israel and let them go into one sort of harbor and get the ship. Then of course there was great laughter and got fucked. And. When it died down the investor scratched his head and says I tell you guys eat like I really can't answer that question here. But he says I'll tell you a story which will make my point.
He said there was an Englishman. An Irishman an Englishman and a Frenchman who was reading and they were caught in the wilds of Africa. And. They were about to be boiled. The cannibal tribe and just before they were going to be thrown in with the chief of the tribe said now we're civilized bunch of cannibals. And to the extent at least they were going to give you your last wish. And of course these Frenchmen want to do wine and cheese and then we've been wanted Dean crumpets. Came the Israelis are what you want. But he said I want you to get a member of your tribe who has the biggest foot and the biggest life. And I want him to get behind me and kick me as hard as he possibly can. So sure is that what you want. Yes that's what I want. OK you get the biggest film of the biggest foot. He gave him a kick and little fellow went right through the air
he landed in the ground and as he came down and pulled a little submachine gun he turned around and fired and the three of them escaped. And as they got away. The Englishman the Frenchman turned to me so why did you wait to the last minute. He says I never act until I'm provoked. Oh oh. Oh oh. Well. I spent. Two weeks. At a meeting. We were locked in the same hotel with Dr. Aaron and he provoked me. At least to the point where I was willing to chance joining this very elite company that. Today. And talk about something that I really don't know too much about. But I was provoked.
Now an important function of the trust of the tribal witch doctor. Is to make choices that are too painful for the community. When powerful interests clash when the need to choose between church with conflicting values threatens to disrupt the society the tempting solution is to address the question to our Sean. He's one who claims special and miraculous insights by externalising the decision to the gods the tribe avoids the dangerous internal confrontations other ages have achieved. The same escape from conflict from conflict through their soothsayers your Savant's in their archives. Today we are much more scientific in western society today. We measure all the variables perform the complicated
tests construct sophisticated simulation models and generally pursue the correct solution with an infallible rationality. When there is a correct answer this approach is admirable. When we apply this method to problems for which science and logic hold no answer we create our own witch doctors. Our tendency to intrust too much to science is shown by the way in which we talk about problem solving whatever the issue. And particularly when divisive questions of social policy are involved. We speak in terms of decisions and decision makers. These labels provide helpful shorthand but their connotations are misleading. There is an aura rationality and objectivity that surrounds the idea of a decision.
This aura allows us to hope. We don't believe in that clear limpid logic will lead to a tidy unassailable decision. But for some problems there is no such answer. The best that can be hoped for is an equitable compromise one which fairly reflects the just demands of each conflicting interest group. To the extent that we disguise the painful process of conflict and accommodation as an aseptic objective decision making. To that extent we delude ourselves and thereby diminish the likelihood that our compromise would be the best and fairest possible. This scientist makes many things possible. Other experts can tell us the cost of the benefits to be expected. But this
is not the journey's end. The scientist as a scientist makes no warning that his discovery will help us toward our own goals. The cost benefit analyst has only the measuring rods that we give him that we provide for society itself as Jews its goals and having done so. Most often choose between goals today for example medical science allows us to prolong the lives of patients suffering from renal failure. Experts can estimate as the gutteral committee did for the Bureau of the budget the expected cost of acting nine years to the patient's life by hemo dialysis like kidney transplants or by a combination of the two techniques. The difficulties of estimating survival rates and dollar costs limit the utility of these estimates. But even if the figures
are a lot several questions remain. Most patients cannot bear the cost of either print 5000 to 14000 each year for dialysis. Thirteen thousand dollars for a kidney transplant and perhaps $5 each year thereafter for immunosuppressive drugs. How should the government underwrite these costs using these estimates. The GA trial committee concluded. That two hundred thirty seven million dollars would be needed in 1975 to provide dialysis for about 18000 patients in transplants for more than 4000 patients. This does not seem and it does not seem to me an excess and excessive investment. For the number of lives involved. But if our resources are limited and at some point they certainly must be. We must consider the opportunity costs of diverting these dollars
from other uses when other lives are at stake. Dollar cost comparisons are possible. It's been estimated. That early detection of cancer cancer of the cervix through Pap tests might save 9000 lives a year. If funds are limited. We could and should compare the cost of such a detection and treatment program for cancer. With the cost of combating renal disease by transplants or dialysis. The comparison becomes more difficult when an alternative program will not save lives but will instead say prevent blindness by detecting and treating glaucoma. Other health programs promise even less dramatic benefits but a program of preventive dental care particularly for children would promote the comfort and well-being of millions of Americans at a fraction of the cost of saving a few thousand lives through hospital dialysis. The task of allocating resources arises everywhere of course
but too often what we buy happens without considering the oranges we gave out. Kidney transplants dialysis pose problems other than economic cost the most obvious is the question of the quality of life we are preserving. The recipient of a successful kidney transplant can hope for a reasonably normal life. The patient on dialysis on the other hand faces a difficult regime beset by frequent discomfort and recurring crisis. Some patients encounter psychological problems because of their total dependency upon continued treatment. We must weigh these factors in determining whether to embark upon a program making dialysis widely available. Perhaps the patient can choose for himself whether to accept dialysis. But despite our reluctance to deny the individual this choice. We should consider over the possibility that the individual facing an
imminent absolute death may be poorly situated to make a choice. The pressures of family responsibilities and the urge for survival but they compel the individual to accept dialysis if it is available. We cannot rely upon cost benefit analysis to resolve these problems but neither science nor logic can make the subjective choices among competing values. Ultimately required. The fact that the patient can be kept alive is not necessarily and automatically imply that he should be particularly whatever discomfort to him and whatever cost to society. Experts can estimate how much dialysis will cost. They cannot tell us whether the life preserver is worth the cost in determining the value of life. Is altogether a different task. Judging the cost of life
experience will or could prove the cost estimate to be right or to be wrong. But no test. Will ever tell us whether our choice between a dialysis program and an equally expensive program of preventive medicine was right or wrong. Individuals of course differ in their evaluations. If one man believes that a hundred healthy children are a better investment than keeping one oldster alive on dialysis his colleague who disagrees cannot claim that his friend is wrong. They could of course agree to settle their dispute by attempting to measure the community consensus. But who then can say the community consensus is right or wrong. The problems created by medical science which kidney transplant transplants and he no dialysis represent but two are not unique. We must interweave moral choices with a scientific investigation and logical
analysis. You know all the feels. And in each case it is equally important to realize first were we are making an objective decision between alternatives according to articulated and agreed upon criteria. Second. Where we are making the subjective choices required to select our criteria and goals. The problems associated with medical progress deserve special attention however because of the clarity with which these present moral questions are the most basic sort. The questions really sound like themes in a sophomore philosophy class who should live who should die. What qualities would we wish you know an ideal man. Is there free will as Dr. Bowden say. These are the these are the questions that lurk in the fascinating quality of modern medicine. Is that these questions bubbles so close to the top. Since this is
so. Far greater involvement for the law in the problem of medical progress is inevitable the mechanism by which society makes choices and accommodates conflicting social interests has always been preeminently the law. Whether by that amorphous term we refer simply to courts. Or more broadly to all the ways in which man structures the relationships that constitute society. And since my experience is that of a judge I shall speak primarily but not wholly just and exclusively about the courts. My purpose is not to decide any legal controversies in order urge upon you my scheme of moral that. Nor is it to demonstrate my expertise in measuring community morality. The effort my effort rather will be to discuss the ways in which courts handle and mishandled the sort of value choices required by medical progress.
The first target must be the myth. That judges simply apply the law. The Constitution statutes and asked you to show decisions to guide courts. But the authors of these documents overlook some problems. Others are too unique to America their attention and perhaps more important new problems on him to support him forseeable. Do or die for all of these reasons. Judges must often look elsewhere for a solution and they may look almost anywhere. The writings of the social scientists to the events and debates that led to the an act of legislation are sometimes simply to the mood of the times. Judges indeed play their most sensitive role and extract in guidance from popular sentiments and current social values and important responsibility of the judiciary is to stand fast against transient passions in society. But at
the same time judges cannot ignore the values of the community around them. To be short the task becomes the more troubling as values change over time and we are never universal and they are never universally shared at any given time. The question arises should the judge interpret ing an ambiguous statute look to the values of the drafters who may be long dead and discredited. Or to contemporary That is if the latter. Should he look to the values of all members of society or only those members in some sense and like and society must and does trust judges to weigh social values in order to fill the inevitable gaps left by statutes and other sources of existing law. By doing so the courts inevitably have an impact on the relative ascendancy of values in society. But strangely both judges and
their public can steadfastly denies Mr Justice Blackmun I have a great deal of respect for example he states with great dignity that he reads the Constitution and needs to look no further to decide all cases. And critics of the Supreme Court have always argued. That its members should look no further than the text of the Constitution. Of course the critics inevitably find that the Constitution clearly states quite the opposite of what the justices have already declared. The very fact of such bitter disagreements over interpretation merely proves the obvious point that it is that there is no clear answer to many problems in our Constitution. Certainly we should never ignore the Constitution. I want to make that clear. Its principles
reflect the finest impulses of our ancestors and ourselves. But for concrete answers to hard problems we must look elsewhere as well. Those who argue otherwise cannot be dismissed as hypocrites. The matter is more complicated is judge your own Frank once argued the public has a powerful urge to idealize judges as Olympian dispensers in partial justice and judges whether as the authors or as the willing victims of the public myths. Do contribute to it. The objection to judges who deny their true role in adjudicating cases is not merely aesthetic. The problem rather is that such stratagems prevent both judges and the public from focusing upon the actual questions. I would never criticize the courage or the wisdom of the Supreme Court justices who declared in 1054 that public school segregation is unconstitutional.
The conclusions of social scientists or CIA and psychologists that separate facilities however equally intangible factors engender feelings of inferiority and Negroes which. And this and this was relevant to the decision. But by relying so heavily upon these findings of the psychologists and and the social scientists the court may have the stated the true basis for Brown vs. Board of Education. And in doing so may have misled the public. In 1896 the court had approved separate the separate but equal doctrine while the country then it. Might then have lacked the sophisticated studies available in 1900 for any honest person that time would have had to concede that segregation undoubtedly made negroes feel inferior. The assumption
of inferiority was the rationale for the practice. But no black man could help it perceive that separate train cars and separate schools kept him in his place. Since we already know what we already knew that time that Kenneth Clark and others have told us since. The public could justly ask of the Supreme Court one thousand fifty four. While the law had changed the answer of course was that our values are changed. Plessy versus Ferguson was discarded not because social scientists told us that segregation contributed to feelings and surety but because by 1954 enough people in this country believed what they did not in 1896 that through and through that to thus insult and emasculate black people was wrong and intolerant and therefore a denial of equal protection of the law to black people had the public
taken Brown versus the Board of Education literally you would have concluded that the constitutionality of segregation depended only upon its effect. What then should the public conclude today if a sociologist found that black schoolchildren despite or because of separate schools and residential segregation develop a strong sense of racial pride and vanity. What if they were to say that segregation is acceptable or even desirable. What believe the public did not take the court literally. Segregation was too sensational too sensational an issue an issue and too shameful a problem for anyone to believe that social scientists or psychologists could or should provide the answer. At other times in other areas the law is befuddled matters more successfully or I should say more disastrously. Judges willing or eager to pretend that they merely
apply existing law to objective facts can often avoid a forthright focus upon the moral dimensions of the problem by concealing the moral question as a question of medical or scientific fact. The courts can then defer to supposed experts who in turn can hide moral determinations behind a choking smokescreen of scientific jargon. A paradigm example of this phenomenon is the insanity defense. The reason for acquiring the jury rather than doctors. To decide whether a man was insane at the time of his offense is that jurors are best qualified to determine blame more than us. Not insanity to decide whether society through its representatives on the jury can justly punish this man for his crime or whether he was so disturbed by mental disease as to make punishment inappropriate immoral. Our willingness to accept an evaluation of blame worthiness even if we personally do not
agree with it may well depend upon who made it. When the jury is confronted with a welter of conflicting testimony cast an arcane jargon of system of the psychiatrists it may pardonably never suspect. That a moral issue of blame worthiness is at stake. We may attempt to answer too many questions with the insanity defense. To the extent that the insanity defense determines not only the defendant's blame within us but also what is done with him. We may collapse essentially different inquiries into a single meaningless question. Guilty or insane.
Man and the value of life
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#4 (Reel 1)
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University of Maryland (College Park, Maryland)
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Identifier: 69-22-4 (National Association of Educational Broadcasters)
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Duration: 00:26:52
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Chicago: “Man and the value of life; #4 (Reel 1),” 1960-04-30, University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed June 16, 2024,
MLA: “Man and the value of life; #4 (Reel 1).” 1960-04-30. University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. June 16, 2024. <>.
APA: Man and the value of life; #4 (Reel 1). Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from