A FRAMEWORK FOR MAKING RETROSPECTIVE ETHICAL JUDGMENTS Ruth Macklin How do we judge historical examples of conduct we now believe to be unethical? How should we evaluate the conduct of people in the past? Are retrospective ethical judgments legitimate? If not, why not? If so, in virtue of what standards or principles can we make transhistorical ethical judgments? Even if we judge past conduct to have been unethical, does it necessarily follow that the individuals who engaged in that conduct can be considered morally culpable? This analysis is designed to address these questions. The candidates for possible ways to make ethical judgments about the past can be located along a continuum ranging from very strict to very lenient criteria. Underlying these various criteria are some presuppositions about historical relativity and the notion of moral progress. The most lenient position holds that whatever the standards or practices of the time were, they constitute the only basis for making retrospective judgments. According to this view, the use of today's ethical standards, rules, or practices to judge the past is illegitimate. This position is one of extreme historical relativism. A second view admits a degree of historical relativity, but also recognizes as legitimate the notion of moral progress. According to this view, although it may be 1 to ethical standards or conduct that were not then articulated or practiced, it is nevertheless meaningful to hold that today's ethical standards or practices are morally superior or more ethically advanced that those of the past. The strictest position contends that people in the past ought to have known or articulated or adhered to certain ethical principles based on other features of their culture or society that demonstrated cultural sophistication or intellectual development (for example, in literature, art, music, mathematics, science, government). A different basis for this strict view stems from evidence that some progressive thinkers of the time did, in fact, articulate such principles or criticize then existing practices on ethical grounds. Further refinements of these basic positions can be stated with the following five criteria. The analysis begins with a statement of the criteria along with a few general examples, and is followed by application to human radiation experiments. Criteria for making ethical judgments about past conduct could be based on: 1. Unarticulated ethical principles, codes of conduct, or rules that now exist but did not exist at the time. It might be said that although no one at that time in fact articulated or propounded such principles or codes, people ought to have doe so in light of their ethical sophistication in other areas. For example, this might be said of Plato and Aristotle, who defended the practice of 2 slavery in ancient Greece. Aristotle's defense of this social arrangement was based on his view that some people are "natural slaves" and others are "natural masters." Now it may well be true that some people have personal traits that make them good leaders, while others have traits that make them good followers. but is does not follow from those observable differences that the former should be ethically permitted to own the latter and treat them like property. Aristotle made numerous distinctions in his ethical theory, including distinctions between intentional and unintentional conduct, voluntary and involuntary conduct, and he gave a finely tuned account of human virtues. It seems fair to say that Aristotle and others of his time had a moral blind spot when it came to the enslavement of humans. Based on the sophistication of his own ethical theory, he ought to have seem that it is not ethically permissible for human beings to own other human beings like inanimate property. 2. Articulated but not widely accepted principles, codes, standards, or rules. Such views have been articulated by critics of then current practices, by philosophers or social reformers, those who held progressive views that were later accepted. Such people are said in retrospect to be "ahead of their time." Examples include criticisms of slavery in the antebellum period in the South, early critics of racial segregation before the civil rights movement, and critics of 3 torture and other inhuman practices regarding prisoners when such practices were widespread. 3. Known principles, codes, or ideals that were generally accepted in other spheres but not applied to the particular type of action or practice in question. Examples can be found in the area of sexual conduct, some of which remain controversial today. The legal and ethical doctrine of privacy was recognized in general and in many spheres of life before it was applied to sexual conduct between married couples in the Supreme Count's decision in Griswold. That decision (in the early 1960s) struck down existing laws that prohibited the sale of contraceptives even to married couples. The controversial application today is the existence of sodomy laws that fail to recognize a right to privacy of consenting, adult homosexual couples. Another example, one that bears on the requirements of informed consent in the biomedical sphere, is the long-standing recognition and acceptance of the notion that people may not be touched or have their bodies invaded without their permission. Although this ethical position was widely held in many areas of social life, medical practice was excluded from this ethical prohibition against unwanted touching until the early consent cases (e.g. Schloenforff v. New York Hospital in 1912). The early consent cases established that doctors must have the permission of patients to invade their bodies; but not until court cases in the late 1950s was it established that doctors 4 had to provide adequate information to patients about what they intended to do to their bodies. 4. Known principles, codes, or ideals pertaining to the type of action or practice, to which lip service is paid but that are not yet or rarely implemented in practice. This can be thought of as the gap between what people think or say is right and what they actually do. the example most pertinent to the work of the advisory committee is that of obtaining voluntary, informed consent to research after Nuremberg but before federal regulations were put in place. It could hardly be said that no one knew of or heard of the Nuremberg code and the ethical requirements of informed consent to research. This is perhaps the most appropriate criterion for an ethical evaluation of human radiation experiments in the years after Nuremberg and even before (see below). It is more lenient than the aforementioned second and third criteria, yet allows for retrospective historical judgments, including ones that assign blame to moral agents. 5. The actual practice of people at that time. This extreme form of historical ethical relativism is ethically unacceptable, since it validates any and all past practices and conduct simply by virtue of their existence. It is a simple application of the maxim: "Whatever is, is right." Since this criterion precludes the possibility of making meaningful retrospective historical judgments, it deserves to be dismissed. 5 Applying these criteria to radiation examples: One way to determine which criterion to adopt would be to decide a priori that a certain criterion is the right one. That is likely to lead to disagreement between those who favor a stronger criterion and those who favor a weaker one. A second way is to seek to determine whether the strongest and the weakest may be ruled out and then work towards the middle. I have already indicated my decision to rule out the weakest criterion, the one that says we cannot in principle make judgements about the past except in terms of what was practiced. But what about the strongest criterion, which holds that ethical principles, codes of conduct, or rules that now exist but were not articulated by anyone at the earlier time may be used to judge the past? I contend that this criterion is useful for judging actions but not moral agents. It is certainly meaningful to use ethical precepts currently accepted to judge past actions. But it is a separate matter to hold morally culpable the individuals who performed those actions. If no one ever conceived of or articulated the notion that such actions could be morally wrong, how can we assign moral blame to the particular individuals who engaged inn those actions? Fortunately, we do not have to use the strongest criterion to judge the human radiation experiments. Criteria 2,3,and 4-- applied to one or another situation--provide grounds for judging certain actions to have been wrong in virtue of what was known or articulated between 1946 and 1974. Once again, here are those criteria: 6 2. Articulated but not widely accepted principles, codes, standards, or rules; 3. Known principles, codes, ideals that were generally accepted in other spheres but not applied to the particular type of action or practice in question; 4. Known principles, codes, or ideals pertaining to the type of action or practice, to which lip service was paid but that were not yet or rarely implemented in practice. The details of the application need to be fully worked out. I have not (or not yet) undertaken that task, but the following are pieces of evidence, documentation, and informational that can be fit into this scheme. [See interim report, pp. 12-13 for details on the following:] --In the case of the military, documentation of consent polices predates the 1947 creation of DOD (see Fn 11, p. 12). --In 1946 the Judicial Council of the American Medical Association published principles that call for voluntary consent to research. The Medical Advisory Committee to NEPA (Nuclear Energy Propulsion for Airplanes) recommended that these AMA principles be used to guide human experimentation under its auspices. 7 --AMA rules concerning human experimentation written by Dr. Andrew Ivy, including provisions stipulating informed and voluntary consent (Briefing book 7, Tab F, attachment 2). --In February 1953, the Secretary of Defense issued, as a top secret document, a policy adopting the Nuremberg Code to the fields of atomic, biological and/or chemical warfare. (See follow-up questions, p. 12.) --At AEC, evidence for a consent policy dates to 1947, the year of the AEC's creation. Were these policies enchanted as formal guidelines or rules? Were they put into practice by AEC- sponsored investigators? (p. 13) The above-noted items (and others that could be added) relate only to the statement or adoption of policies governing research by these federal agencies. Other evidence comes from letters, memos, transcripts of meetings, and published articles. Some examples: --Shields Warren's opposition to NEAPA proposals for human experimentation (1948-49) --Letter from Shields Warren to Leslie Redman, March 5, 1951. Significantly, this letter quotes the letter from Carroll Wilson to Dr. Robert Stone, dated November 5, 1947, in which the statement prepared for the Commissioners by the Advisory Committee for Biology and Medicine is quoted as follows: 8 "We believe that no substances known to be, or suspected of being, poisonous or harmful should be given to human beings unless all of the following conditions be fully met: (a) that a reasonable hope exists that the administration of such a substance will improve the condition of the patient, (b) that the patient give his complete and informed consent in writing, and (c) that the responsible nearest of kin give in writing a similarly complete and informed consent, revocable at any time during the course of such treatment." NOTE ESPECIALLY: Use of words informed consent (not simply "consent"; and also the fact that this explicitly includes experiments on patients, not healthy volunteers. --Jackson letter to Casberg re: the requirements of written consent, Oct. 22, 1952, (Origins and Drafting of Wilson Memo and Subsequent DOD policy--briefing book 8, Tab K) --Armed Forces Medical Policy Council memorandum to the Secretary of Defense, December 21, 1952. --Andrew Ivy's article published in Science in 1948, stating that the most important ethical requirement is that subjects are volunteers under to "undue pressure" to participate. --Special Article in JAMA (Feb. 14, 1948), "Ethics Governing the Service of Prisoners as Subjects in Medical Experiments" [Briefing book 8, tab E, attachment 6; refers to ethical principles..."(1) that all subjects should be volunteers in 9 the absence of coercion in any form; (2) before volunteering, they be adequately informed of the hazards, if any, and (3) that the choice of volunteers be made on the basis of established criteria." ADDITIONAL POINTS TO NOTE IN APPLYING THE FRAMEWORK. The committee has to decide which of the above-noted criteria for retrospective judgement should be used to evaluate radiation experiments before 1974. A second question is to whom the criteria should be held to apply: for example, those who ordered the research to be done, those who actually carried it out, or some intermediate level of supervisors. A third point is devise appropriate categories within which the retrospective judgements are to be made. The presence or absence of adequately voluntary, informed consent is one category; an assessment of radiation risks to subjects is a second category; and a third is the selection of subjects-- prisoners, mentally retarded youth, children, and dying patients. A fourth point in applying the search for analogies elsewhere in medicine (that is, outside the specific area of radiation research). Are there any analogies to indicate that the conduct of radiation research departed from that in other areas? One item that has been suggested is the long-standing practice of medical researchers using themselves as subjects before subjecting 10 others to experimental risk. Was that routinely or ever done by researchers in the radiation experiments? 11