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THE JOURNAL OF LAW, MEDICINE & ETHICS contents VOLUME 39:1 spring 2011 Symposium Articles 5 Introduction: Health Legacies of War On and Beyond the Battlefield Susan L. Smith 8 Experimental Wounds: Science and Violence in Mid-Century America Susan Lindee This paper explores the scientific production of experimental wounds, suggesting that these scientific research programs illuminate the consequences of the historical relationship between technical knowledge production and the state's monopoly on violence. 21 Surviving Wartime Emancipation: African Americans and the Cost of Civil War Leslie A. Schwalm The U.S. Civil War chained slave emancipation to war's violence, destruction and deprivation. The resulting health crisis, including illness, injury, and trauma, had immediate and lasting consequences. This essay explores the impact of ideas about race on the U.S. military's health care provisions and treatment of former slaves, both civilians and soldiers. 28 Waiting to Exhale: Chaos, Toxicity and the Origins of the U.S. Chemical Warfare Service Andrew Ede The development of chemical warfare by the United States in World War I reveals the chaotic nature of American science in the period, and how attempts to overcome problems helped to establish the modern relationship of military-scientific research.
Letter From the Editor
Letter From The Editor

The often quoted (but seldom read) military theorist Carl von Clausewitz once famously wrote that "war is the continuation of politics by other means." This idea is now widely accepted as essentially true, because it imagines under its rubric the seemingly modern ideas of total war, counterinsurgency, and the larger concept that war is not fought between armies, but between nations and people. Susan L. Smith, a professor of history at the University of Alberta and the Guest Editor of this issue, asks questions about the role that medicine and health play during and after a time of war. Does the medical profession (and the physicians, nurses, scientists, researchers, and ethicists who make up the profession) fundamentally continue its peace-time role during a time of war? Or is medicine, like war, "another means" of achieving a political end, one that adapts and changes in surprising ways during wartime?
Introduction: Health Legacies of War On and Beyond the Battlefield
Susan L. Smith - [PDF]

The health legacies of war are ubiquitous: ever-present and everywhere. Consider the ongoing wars in Afghanistan since October 2001 and in Iraq since March 2003, part of the so-called "War on Terror" launched by President George W. Bush after the attacks on the United States on September 11, 2001. These wars have produced casualties not only among troops in combat, but also among civilians in neighborhoods, detainees in prisons, and newborn babies. In March 2010, for example, physicians in the Iraqi city of Falluja reported high rates of birth defects in babies. They attributed infant heart defects and nervous system disorders to the use of sophisticated American weapons and exposure to hazardous military waste in the environment.1 In April 2010, two former American soldiers released an open letter of apology to the Iraqi people for the shooting of civilians, including children and journalists, in a Baghdad neighborhood.2 Such reproductive, environmental, and community harms are central components of the health consequences of war. Examination of the impact of war raises important questions about human rights and medical ethics. As George Annas and Jonathan Moreno warn, the military is too often overlooked in the study of bioethics, yet it has been integral to its history.3 International standards clearly state the parameters of ethical and legal behavior in wartime, yet violations are inevitable when national security and military necessity trump all else.
Symposium Articles
Experimental Wounds: Science and Violence in Mid-Century America
Susan Lindee - [PDF]

Taken from a published report on wound ballistics research during World War II, Figure 1 depicts the abdomen of a cat that has been shaved, anesthetized, marked with a grid, and shot. The individual squares are frames, the caption says, "(2880 per second) from a high speed motion picture of a cat's abdomen, showing the volume changes and movements caused by a 6/32nd inch steel sphere." We can recognize in this image the conventions of scientific inscription. The technologies are sophisticated, quantitative, impressive. The image speaks for itself. Or does it? What exactly is happening when an anesthetized cat with a shaved abdomen painted with a grid gets shot, in a laboratory, and when that event is hyper-documented in high speed photographs, and deployed in a range of texts as evidence? And what do these human creations - these highly quantified experimental wounds - tell us about the culture and practice of twentieth-century science?
Surviving Wartime Emancipation: African Americans and the Cost of Civil War
Leslie A. Schwalm - [PDF]

Ask any Civil War historian about the cost of the Civil War and they will recite a host of well-known assessments, from military casualties and government expenditures to various measures of direct and indirect costs.1 But those numbers are not likely to include an appraisal of the humanitarian crisis and suffering caused by the wartime destruction of slavery. Peace-time emancipation in other regions (the northern U.S., for example) and in other societies (like the British West Indies) certainly presented dangers and difficulties for the formerly enslaved, but wartime emancipation chained the new opportunities and possibilities for freedom to war's violence, civil chaos, destruction and deprivation.2 The resulting health crisis, including illness, injury, and trauma, had immediate and lasting consequences for black civilians and soldiers. Although historians are more accustomed to thinking of enslaved people as the beneficiaries of this war, rather than its victims, we cannot assess the cost of this war until we answer two important questions: first, what price did enslaved people have to pay because their freedom was achieved through warfare rather than a peacetime process; and secondly, in this war in which so many Americans paid such a high cost, to what extent did racism inflate the cost paid by people of African descent? In answering these questions, we reconsider this specific war, but we must also tie the U.S. Civil War to a larger scholarship on how wars impact civilians, create refugee populations, and accelerate harsh treatment of people regarded as racial, religious, or ethnic outsiders. We are reminded that war is not an equal-opportunity killer.
Waiting to Exhale: Chaos, Toxicity and the Origins of the U.S. Chemical Warfare Service
Andrew Ede - [PDF]

In 2008, Susan L. Smith published "Mustard Gas and American Race-Based Human Experimentation in World War II."1 Research, undertaken by the US Army, attempted to quantify the effect of mustard gas (actually a volitile liquid) and othe chemical agents on people from different racial groups. This was based on the idea that different races would respond differently to the toxins, and in particular that this would be evident through dermal reaction. In other words, different skin color might mean different skin constitution. Some of the testing seemed reasonable, since new chemicals and equipment had been developed since 1919, and the racial issue added another dimension to the research. On closer examination, the testing was primarily based on old chemical agents such as mustard gas, Lewisite and phosgene, and thus the extent of the testing seemed scientifically and medically unnecessary. The chemical agents had been developed, tested, used in battle, the wounded treated and the dead subjected to detailed pathological study. The major combatants in World War I had all committed extensive scientific resources to the study of these agents looking at both offensive and defensive aspects of their use, including toxicity testing. The U.S. Chemical Warfare Service (CWS) had been formed in 1918 to specifically deal with issues such as toxicity tests, so why was the U.S. Army revisiting the subject of chemical weapons testing during World War II?
Toxic Legacy: Mustard Gas in the Sea Around Us
Susan L. Smith - [PDF]

In 1946, Tom Brock spent part of his summer dumping mustard gas bombs off a barge into the Atlantic Ocean. Brock was a civilian employed by the United States Army Transport Service in Charleston, South Carolina. His job was to dispose of surplus bombs and drums filled with mustard gas. Sulphur mustard, commonly called "mustard gas," can take several forms: a liquid, a solid, or a vapour. Mustard gas, named for its mustard-like color and smell, is a vesicant that is toxic to humans and causes blistering and burns, affecting the lungs, eyes, and skin.1 Brock recalled that he and the soldiers enjoyed watching the occasional bomb explode as it sunk into the water. "We thought it was fun," explained Brock. "I was 18 or 19 years old. We weren't scared. We didn't fear any explosive. We thought we were immortal." Later that summer he was required to guard a barge of bombs that were leaking mustard gas, which looked to him like hot molasses.2 Due to the known health risks, Brock was told to wear a protective suit and gas mask. However, it was a hot day so he loosened the straps around his legs. As a result, enormous blisters developed, swelling out like a balloon from his toes to his knees. His summer job was no longer fun as he experienced firsthand the health hazards of exposure to mustard gas.
Veterans' Welfare, the GI Bill and American Demobilization
Laura McEnaney - [PDF]

The passage of the Servicemen's Readjustment Act of 1944 - or GI Bill - opened up a dialogue about men’s physical and mental health, for it addressed very directly what ordinary men would need to recover from extraordinary violence. Political leaders identified veterans' "welfare," by which they meant general well-being, as a top priority of World War II's recovery, and the GI Bill was the centerpiece of their agenda. The bill's passage was an impressive legislative triumph, the collective product of massive medical, legal, and social science research, bipartisan politicking, and veterans' activism. It provided education, housing, and small business assistance, along with mental and physical rehabilitation in government-funded hospitals. All of these programs, whether they served mind, body, or wallet, amounted to welfare - a set of government-sponsored policies and services designed to aid a soldier's transition from enlisted man to healthy, productive citizen. Thus we have to think about the broad reach of the GI Bill's welfare provision as one of the health legacies of World War II.
Going for the Burn: Medical Preparedness in Early Cold War America
Susan E. Lederer - [PDF]

On September 23, 1949, President Harry Truman announced that the Soviet Union had successfully detonated an atomic bomb. The news that the Soviet Union had done this came as little surprise to a number of American scientists and to some members of the intelligence community who had predicted that the Soviets would quickly acquire this advanced weapons technology. But for many Americans this news was disturbing. Truman's announcement was taken up by, among others, a young Baptist evangelist named Billy Graham. Opening a tent revival in Los Angeles just two days after the President's report, Graham preached how the news of the Soviet bomb test had "startled the world” and launched an "arms race unprecedented in the history of the world." President Truman, he informed his listeners, said that we "must be prepared for any eventuality at any hour... " Perhaps even more ominously he asked the crowd, "Do you know the area that is marked out for the enemy's first atomic bomb? New York! Secondly, Chicago; and thirdly, the city of Los Angeles!"1 It was not only evangelical preachers who foresaw catastrophic implications from a growing arsenal of atomic weapons.
Representations and Reproductive Hazards of Agent Orange
Leslie J. Reagan - [PDF]

United States Air Force planes fly across mountains of green forest; behind them, fine white streams of chemical spray fill the sky. The planes fly alone or in formation covering wide swaths of the entire landscape. These images of the herbicide spraying during the United States-Vietnam War are ubiquitous in media material about Agent Orange, the most heavily used of the fifteen herbicides sprayed during the war. This representation of the war does not include guns, grenades, tanks, bombs, or dead bodies. Instead, contemporary documentary filmmakers offer images of airplanes and chemical barrels to provide evidence of another weapon of war, pan dead and leafless forests in an otherwise lush landscape of green, and zero in on children's deformed bodies to show the lasting environmental and health effects of Agent Orange. In this essay I share preliminary thoughts from my new project on Agent Orange and film in the United States and Vietnam. The bulk of social science writing on Agent Orange has focused on American veterans and their fight to secure benefits, while film scholars have analyzed the Vietnam War in Hollywood movies and television.1 I investigate documentary film, the transnational activism that generates these films, and the representations of gender, disabilities, bodies, history and culture within them. Here I offer a close reading of two turn-of-the-twenty-first-century documentaries about Agent Orange in Vietnam.
Independent Articles
Reasonable Suspicion of Child Abuse: Finding a Common Language
Benjamin H. Levi and Sharon G. Portwood - [PDF]

A father brings his six-year-old daughter and her older sister to their pediatrician to be evaluated for a history of cough, runny nose, and low-grade fever. In addition to signs of a cold, the girl's nasal bridge is quite swollen and bruised. When asked how her nose was injured, she shrugs, and her father's only conjecture is that she sleepwalks and might have bumped into something. The father sits impatiently and as questioning progresses becomes increasingly defensive, at one point angrily declaring, "We don't beat our kids, if that's what you're asking." Further complicating the situation is information from nurses that this family is "on the brink" socially and financially, and that additional stress is likely "to blow this family apart." A careful physical exam identifies no other injuries, and a thorough review reveals no evidence of prior suspicious injuries, frequent visits to the emergency room, or bleeding abnormalities. The evidence does not point to abuse as the most likely explanation for the injury, but it clearly is not ruled out. Should one report this family for suspected abuse? Is one required to report?
Harmonization of Ethics Policies in Pediatric Research
Valarie Blake, Steve Joffe, and Eric Kodish - [PDF]

The Food and Drug Administration (FDA) and the European Medicines Agency (EMA) have launched a recent initiative to enhance collaboration in research, with the intent to "ensure that clinical trials submitted in drug marketing applications in the United States and European Union are conducted uniformly, appropriately, and ethically." This initiative recalls efforts from two decades ago when the United States, the European Union and Japan formed the International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH) as a mechanism for harmonizing clinical research regulations.2 The intent of harmonization was to improve patients' "access to new drugs, to prevent unnecessary global development delays and to avoid animal and human study duplications" through policy reconciliation.
Grassroots Marketing in a Global Era: More Lessons from BiDil
Britt M. Rusert and Charmaine D. M. Royal - [PDF]

Since the first phase of the formal effort to sequence the human genome, geneticists, social scientists and other scholars of race and ethnicity have warned that new genetic technologies and knowledge could have negative social effects, from biologizing racial and ethnic categories to the emergence of dangerous forms of genetic discrimination. Early on in the Human Genome Project (HGP), population geneticists like Luigi Luca Cavalli-Sforza enthusiastically advocated for the collection of DNA samples from global indigenous populations in order to track the history of human ancestry, migration, and languages, while social scientists like Troy Duster insisted that the new genetics was in danger of ushering in insidious practices of eugenics. The Human Genome Diversity Project's 1991 proposal to archive human genetic variation around the world quickly came under intense scrutiny by indigenous peoples and advocacy groups who worried that such measures could exploit indigenous groups as research populations and even resurrect racist taxonomies from the nineteenth century. Ongoing sensitivity to genetic discrimination has been evidenced more recently in the May 2008 passage of the Genetic Information Nondiscrimination Act (GINA), which prohibits employers and health insurance companies from collecting and using genetic information for discriminatory purposes. While such measures have been, in many ways, effective in raising awareness about such issues and preventing some forms of genetic discrimination before they become a serious problem, the use and reinforcement of identity categories in genomics research continues to be contested terrain in legal, ethical, and public policy debates. Over the past few years, issues related to race, ethnicity, and genetics have appeared in more subtle and surprising areas, including the domains of intellectual property and pharmacogenomics.
Currents in Contemporary Bioethics
Mark A. Rothstein - [PDF]

By many accounts, the three key measures of a health care system are access, quality, and cost. As for access, the focus of policy makers has been almost exclusively on the coverage of individuals under public and private health plans. This simplistic view of access equating with insurance coverage overlooks the importance of such nonfinancial barriers to health care as the lack of transportation, translation services, child care, convenient hours, accessible facilities, and health literacy, which prevent many individuals from obtaining timely and effective health care. Most importantly, focusing solely on health insurance ignores the crucial question of whether there are adequate numbers of physicians and other health care providers who are ready, willing, and able to provide the necessary care. Unfortunately, the current shortage of available providers is likely to increase significantly over the next decade, regardless of the fate of the health reform legislation enacted in 2010.
Recent Developments in Health Law
Cordaro Rodriguez - [PDF]

The United States Court of Appeals for the Sixth Circuit struck down a state regulation (Rule) promulgated by Ohio's Department of Agriculture (ODA) which banned labeling dairy products with disclaimers indicating that the dairy product did not contain any bovine growth hormone, such as "rbGH free," "rbST free," or "artificial hormone free." The court held that the Rule's prophylactic ban on such labeling violated the First Amendment.