22 H A S T I N G S C E N T E R R E P O R T July-August 2007

bad thing, as it makes for a policy-making process that recog-nizes our moral pluralism.

By allowing for multiple outcomes, the federal system per-mits local majorities to form even when national ones are elu-sive, allowing for a better fit between public preferences andpublic policies than a single national standard. Individualstates are not demographically, culturally, ethnically, or reli-giously identical to the country as a whole. Similarly, stateeconomies are not replicas of the national economy. These dif-ferences—and the political interests to which these differencesgive rise—are associated with differences in political ideologyand values across the states.

As a result, states can sometimes legislate where definitivefederal action has been impossible. The federal governmenthas been unable to enact a coherent policy on embryonic stemcell research, for example, but numerous individual states havedone so. The resulting state policies have been extremely di-verse, ranging from large-scale state financial support to out-right criminalization, but much of this diversity seems to bethe result of a diversity in public opinion across the states.This variegated set of policy choices is more responsive to dif-ferences in public opinion than any single national standardwould be.

A decentralized system also provides a means of experi-menting with alternative means of regulating reproduction.Embryonic stem cell research, for example, is more controver-sial than many other areas of scientific research, and such is-sues as payment for eggs have proven to be contentious. Thereis no clear bioethical or political consensus on any of thesequestions, and no evidence on the consequences of adoptingone position on these issues as opposed to another. California,with the largest state-funded stem cell program, has the mostextensive experience in developing a regulatory framework forembryonic stem cell research, and other states contemplatingfunding programs are likely to draw on this experience in de-veloping their own rules. Yet since what “works” politically, ju-dicially, or administratively in California may not work inother states, a variety of approaches is to be expected. This ex-perimentation will provide useful evidence on the conse-quences of different policy choices and allow states and thefederal government to make decisions based on better knowl-edge of their consequences.

Piecemeal Solutions for Complex Problems

Absent a national consensus that supports a definitivemove in a particular policy direction, relying on the cur-

rent decentralized, incremental system to make decisionsabout public reproductive policy seems both more probableand more sensible. While national majorities have proven elu-sive, majorities have formed in individual states around stemcell research and other bioethical issues, and it seems reason-able to allow these majorities to proceed where they exist. Insimilar fashion, individual patients and physicians seem likelyto remain the dominant decision-makers of major reproduc-tive choices and to resist, via both political and judicial means,

attempts to rely on bureaucratic decisions about, for example,the number of embryos to be implanted in a given fertilitycycle. Informing patient decisions might prove a more sensi-ble strategy than attempting to abrogate them.

Depending on the current decentralized system definitelyhas its costs in terms of efficiency and consistency, but it hasthe great virtue of accommodating moral diversity and allow-ing citizens to live under moral regimes that they approveof—no small matter in a democracy. This system will in-evitably produce enormous disparities in how particular ques-tions are resolved from place to place, but such disparities arelikely to reflect differences in public and political opinion andshould not be lightly dismissed.

Anumber of bioethicists strongly advocate a mecha-nism known as “rational democratic deliberation” foraddressing in a way that is fair and legitimate some of

the controversial ethical and policy issues related to medicineand health care policy. I am among them. Unfortunately,whether and how deliberative outcomes can actually alterpublic policy is not quite clear. Many will recognize the pub-lic educational value of deliberative efforts but stop far shortof holding that they should have a direct and substantial rolein shaping public policy.

To my mind, Fukuyama and Furger are committed to onlya minimalist conception of democratic deliberation. They arecorrect to doubt the commitment of scientists and industryleaders in reprogenetics to self-regulation. But they are exces-sively skeptical of the public’s capacity to engage in fair andreasonable deliberations about these matters. They would wel-

B Y L E O N A R D M . F L E C K

Can We Trust “Democratic Deliberation”?

Leonard M. Fleck, “Can We Trust ‘Democratic Deliberation’?” Hastings CenterReport 37, no. 4 (2007): 22-25.

H A S T I N G S C E N T E R R E P O R T 23July-August 2007

come public input through Web-based citizen panels and verybroad surveys, but they would filter the results of this inputthrough a special reprogenetics advisory board and other stan-dard regulatory mechanisms, which suggests they do not re-gard the public input as being either trustworthy or suffi-ciently accountable.

That brings me to the central question of this essay. Couldrational democratic deliberation yield a sufficiently trustwor-thy and politically legitimate system for national regulation ofthe industries and health professionals connected to reproge-netics, even given the acrimony associated with abortion(which would never be far off ) and threats to professional au-tonomy and basic personal liberties? I think so, although Iwill have to mention some qualifications. In particular, thedeliberative process needs to include a broad and diverse rangeof people, it must be transparent to the public, and it shouldreflect a commitment that policy proposals will be both rea-sonable and supported with reasons.

Our key question has two dimensions—one empirical, onenormative. I will say a few things pertinent to the empiricaldimension, but most of what I want to say is about the nor-mative aspects. To give a more concrete focus to my discus-sion, we might imagine the deliberative effort focusing onfour issues:

• Should there be public funding for embryonic stem cell re-search, including publicly provided payments to women toproduce embryos for research purposes?

• Should there be any restrictions on parents’ use of preim-plantation genetic diagnosis to choose the genetic endow-ment of their possible future children?

• Should there be public funding for research aimed at giv-ing us the capacity to do germline genetic engineering ofeight-cell embryos?

• Should therapeutic cloning research be permitted, includ-ing payments to women to produce excess ova for researchpurposes?

Why should these questions not be answered through democ-ratic deliberation? The short answer would be: because therewould be no accountability, no assurance of neutrality or im-partiality in setting the deliberative agenda or feeding infor-mation into the deliberative process, no assurance of fair rep-resentation, a risk of inflaming public passions and furtherpolarizing the public around these issues, a risk that the pub-lic’s scientific ignorance would infect the regulations, a riskthat the deliberative process would be captured by special in-

Oval with TwoForms, by Barbara Hepworth, 1971, stone.©Bowness, Hepworth Estate. Photo: ©Tate, London 2006

24 H A S T I N G S C E N T E R R E P O R T July-August 2007

terests, a risk of irresponsible public enthusiasm for all innov-ative technologies, and a risk of antiliberal religious enthusi-asm inappropriately constraining basic political liberties orlimiting basic scientific research. Instead of democratic delib-eration, then, we might rely on administrative rule-making, orpresidential commissions, or judicial processes, or congres-sionally appointed expert committees, or self-policing by thescientific and business communities. All of these have well-known significant deficiencies that Fukuyama and Furgerhave conveniently rehearsed.1

Why is rational democratic deliberation desirable and nec-essary for addressing these ethically and politically controver-sial questions? The short answer is that we cannot afford to letthe social corrosiveness and polarizing effects of the abortionissue further fray the bonds of trust and respect essential to thepeaceful functioning of a liberal, pluralistic society. The abor-tion issue directly touches relatively few lives in our society,and this limits to a large extent the expression of destructivepolitical passions. But the four issues I identified above all in-volve substantial embryonic destruction and potentially touchthe lives of virtually everyone in our society, thereby augment-ing exponentially the risk and the magnitude of caustic socialconflict.

What well-structured democratic deliberation offers is amore collaborative and constructive approach to addressingthese issues in a reasonable and mutually respectful manner.Such processes are possible because the vast majority of Amer-icans do not have strong moral commitments on any of theseissues, and hence are open to such deliberative efforts. Further,there are typically multiple reasonable policy options regard-ing any single issue, which means there is political space forcreatively accommodating diverse (and initially conflicting)value perspectives.

What are the most essential conditions that must be met inorder for democratic deliberation to lead to politically legiti-mate regulative policy-making? First, the problem that is thespecific focus of the deliberative effort must be precipitated bya genuine public interest that must be either protected or pro-moted. (This speaks to concerns about takeover by special in-terests.) Second, the deliberative group must reasonably repre-sent the range of viewpoints pertinent to the issue at hand.Failure to include representatives of a right-to-life position orindividuals who were advocates for persons with disabilities inthis context would delegitimate any deliberative outcome.(This speaks to concerns about fair representation.) Third, thedeliberative group must have access to the relevant expertiseand mechanisms for critically assessing that expertise. (Thisspeaks to concerns about scientific ignorance infecting policy.)Fourth, both the deliberative process itself and its outcomesmust suitably reflect public reason, as required by the deepestminimal value commitments of a liberal, pluralistic, tolerantdemocratic society. (This speaks to concerns about religious orscientific fanaticism infecting public policy.) A deliberativeprocess that met these conditions would certainly have morepolitical legitimacy for regulatory purposes than most of theinterest-group-poisoned, perverse, or self-protective policies

that presently emerge from our executive or legislative branch-es of government. See here the Medicare prescription drug“benefit.”

Appeals to public interests in ordinary political discourseare most often little more than vaporous political rhetoricaimed at hiding otherwise naked self-interest. But the conceptcan be given a reasonable and fruitful meaning. A public in-terest in a strict sense is an interest that each and every one ofus has as a citizen and that we as individuals are unable to pro-tect or promote adequately. The most obvious example wouldpertain to environmental legislation. Each of us has a clear in-terest in having clean air and water. Just as clearly, we have nocapacity as individuals or even as organized groups of individ-uals to protect our air and water from powerful corporations.What is needed is the coercive authority and coordinativepower of government to achieve the necessary protections inan economically competitive environment. How clean mustthe air and water be? There is no scientifically objective answerto that question, although much scientific information wouldbe pertinent to thinking that through carefully. Tradeoffswould have to be made between acceptable environmentalquality, higher taxes or product costs, and loss of jobs. This issuitable subject matter for rational democratic deliberation.

What public interests are at stake in the field of reproge-netics? Given the liberal and pluralistic commitments of oursociety, and given the very private and intimate character ofthe interests at stake, perhaps we should say that protectingprocreative liberty should be one public interest. This wouldsuggest that those who sought to limit or prohibit specificprocreative options would have to bear the burden of showingthat other, more powerful public interests justifiably con-strained certain options. The welfare of possible future chil-dren (otherwise defenseless against irrationally hopeful parentsor entrepreneurial service providers) would seem to be onesuch reasonable public interest. If so, regulations limiting fer-tility clinics to implanting two embryos per IVF cycle wouldbe justified (since the children are otherwise vulnerable to thedisability risks associated with extreme prematurity in a mul-tiple pregnancy). A limit of two embryos means lower successrates for clinics and greater costs for infertile couples, but thepublic interest at stake seems to outweigh these drawbacks.

Note that the risks of harm referenced in this case are pal-pable and scientifically well documented. Fukuyama andFurger would ban germline genetic engineering forever andcompletely, citing the safety risks to possible future childrensubject to genetic alterations as eight-cell embryos. Those risksare certainly real and politically legitimate concerns today be-cause the relevant scientific knowledge is so thin and uncer-tain. However, we have no reason to believe that our knowl-edge and technical skill in this regard will not improve to nearperfection in the future, in which case it would be much hard-er to identify a strict public interest that would justify banningeither the use of this technology or the research needed to per-fect the technology. Various regulations might well be politi-cally reasonable (not illiberal), but their precise form could betrusted to well-structured democratic deliberation. Placing

H A S T I N G S C E N T E R R E P O R T 25July-August 2007

perfected germline genetic engineering “beyond democraticdeliberation” would not seem to have an obvious warrant con-gruent with public reason.

The concept of public reason I am invoking is that pro-posed by John Rawls in Political Liberalism.2 This concept ofpublic reason is essential for maintaining the practical politi-cal legitimacy of rational democratic deliberation in a liberal,pluralistic society. Public reason is “public” because it is di-vorced from any particular comprehensive religious or philo-sophic viewpoint, thereby providing a framework for policy-making on morally controversial issues that is neutral and thatfosters mutually respectful political deliberation. This is whythe democratic deliberativeprocess can be (but is not guar-anteed to be) constructive andcollaborative rather than sociallydestructive and polarizing.

Public reasons are what mustbe invoked to justify a policyproposal that might imposeobligations or limitations onvirtually anyone in our society.The neutrality of public reasonsminimizes the risks that any so-cial or political group could usethe coercive powers of govern-ment to impose its views onothers. Further, no one wants tobe the object of others’ use ofcoercive power, which means weall must maintain a commit-ment to neutral reasons to justi-fy our policy proposals. To illus-trate these points, recall the em-bryonic destruction associatedwith the four issues mentionedabove.

We might imagine that suit-ably representative democraticdeliberation could not possibly yield any socially constructivepolicies regarding these issues because of the deep objectionsof right-to-life advocates. However, our newly developed em-bryonic stem cell research capacity has created considerableinternal moral conflict for many of these advocates. If embry-onic stem cell research can fulfill its promise of ameliorating abroad range of degenerative medical problems (diabetes,spinal cord injuries, cardiac damage), then such research cer-tainly appears to be life-affirming. Thousands of embryoswould need to be destroyed to advance this research, but theseare embryos that would never be implanted in a womb, andnever have a thought or feeling of any kind. In reflective mo-ments, right-to-life advocates might wonder whether theywould really deny themselves (or loved ones) access to suc-cessful regenerative therapies for Parkinson disease becauseembryos had been destroyed in the course of the research.These are the sorts of thoughts that make constructive (rather

than polarizing) democratic deliberation possible. That suchrethinking can occur freely and is encouraged to occur is a pri-mary virtue of a liberal society. Such rethinking also facilitatesmutual adjustment of the social values espoused by diversegroups, thereby sustaining a peaceful pluralism through whatRawls calls the fashioning of an “overlapping consensus” (asopposed to a consensus reached within any one group).

I once spelled out fifteen criteria that well-structured de-mocratic deliberation should exhibit if the outcomes of thatprocess are to be fair and reasonable and politically legiti-mate.3 Those criteria still leave an “accountability gap” in thatthey lack clear connections between deliberative efforts and

the more formal policy-makingprocess. Fukayama and Furgerhave offered some very concreteideas for closing that gap thatdeserve our attention,4 but tomy mind their commitment todemocratic deliberation is toominimalist. What is needed is abroad cultural understanding ofand commitment to the prac-tices of public reason and the in-stitution of numerous forumsfor respectful, representative de-mocratic deliberation (as op-posed to the homogeneous ideo-logical conversational enclaves ofthe Internet and talk radio).This will do more to close theaccountability gap and to main-tain the integrity of deliberativeoutcomes through the formalpolicy-making process than any-thing else I can imagine.

1. See F. Fukayama and F. Furger,Beyond Bioethics: A Proposal for Mod-ernizing the Regulation of Human

Biotechnologies, (Washington, D.C.: Paul H. Nitze School of AdvancedInternational Studies, 2007), chapters 9 and 10.

2. J. Rawls, Political Liberalism (New York: Columbia UniversityPress, 1993), chapter 6.

3. L.M. Fleck, “Creating Public Conversation about Behavioral Ge-netics,” in Wrestling with Behavioral Genetics: Science, Ethics, and PublicConversation, ed. E. Parens, A.R. Chapman, and N. Press (Baltimore,Md.: Johns Hopkins University Press, 2006), 257-85.

4. Fukayama and Furger, Beyond Bioethics, chapters 11 and 12.

The vast majority of Americans have no strongmoral commitments on

reproductive issues and so areopen to well-structured

democratic deliberation toaddress them in a reasonable

and respectful manner.