Worshipping at the Altar of Technique Manic Aggressive Medicine and Law "We now act as if we really believe that disease, aging and death are unnatural acts and all things are remediable." Charles R. DiSalvo Introduction On October 13, 1993, in a hospital in Fairfax, Virginia, Contrenia Harrell gave birth to a girl who would be known to the world only as "Baby K". What marked Contrenia's daughter as different was that she was born without a cerebrum. For whatever period of time her four-and-a half pound body would live, Baby K would be incapable of any consciousness, any cognition. She would never speak a word nor hear a sound. She was alive only because she had a brain stem, which allowed her body to engage in reflex actions and involuntary functions. When Baby K had difficulty breathing at birth, the doctors at Fairfax Hospital turned to a mechanical ventilator to sustain her breathing while they confirmed their diagnosis and talked to the child's mother. The typical result of such parent-physician conversations is an agreement not to prolong the infant's dying, but instead to provide nutrition, hydration, and warmth for the few days such infants live. Virtually all physicians and parents see no point in more. Indeed, Baby K's doctors as well as a specially appointed panel of the hospital's ethics committee recommended that further treatment not be given. Contrenia Harrell, however, knew about mechanical ventilation and she demanded that whenever her daughter needed ventilation she should receive it. The hospital tried to transfer Baby K to another hospital. Predictably, no other hospital would take her. The hospital kept her until, seven weeks after her birth, she was able to tolerate a transfer to a pediatric nursing facility. Baby K's mother agreed to the transfer but only on the condition that the hospital take the child back should she experience respiratory distress. That move provided only a brief respite for the hospital. Thereafter Baby K was brought back to the hospital and put on the mechanical ventilator whenever her breathing began to fail. Soon the hospital grew tired of this; it asked the United States District Court for the Eastern District of Virginia to declare it had no obligation to continue ventilation for an anencephalic baby. Both the District Court, and the Fourth Circuit Court of Appeals to which the Hospital appealed, ruled against it. The Supreme Court refused to hear the case. The cycle of transporting the child from the nursing home to the hospital for ventilation and then back to the nursing home was to continue for the next two-and-a-half years. Finally, on April 5, 1995, Baby K succumbed to a cardiac arrest. Only then were all the parties to this story--the hospital, the mother, the child, her doctors, and the courts--free from the grip of the mechanical ventilator. The machine that kept Baby K's body breathing, the machine that was a frequent and dominating bedside presence, is a symbol of the technology before which American society, medicine and law genuflect with a mixture of fervor and awe. For Americans, technology, especially medical technology, is the alpha and the omega, the beginning and the end. Why? Why do Americans so readily embrace CPR, intubation, EKGs, angioplasty, the coronary by-pass, lithotripsy, MRI, and CAT scans? Why do Americans demand that there be a technological test for every ailment--and that they get unambiguous responses? Why must every American home have a VCR, a computer, and a cordless telephone? Indeed, why did Americans react to the tragedy of the high-tech Gulf War, which killed upwards of 100,000 people, as if it were a video game? In 1954 a little-known French theorist, Jacques Ellul, predicted we would be asking these questions when he published his controversial book, La Technique ou l'enjeu du siecle. In it Ellul said: "No social, human or spiritual fact is so important as the fact of technique in the modern world. And yet no subject is so little understood." Now, more than forty years after Ellul wrote these words and more than thirty years after their appearance in the American publication of the English translation, entitled The Technological Society, the importance of "la technique" to an explanation of our modern condition remains terribly underestimated. Yet the role of technology in the creation of a world that grows more inhospitable to humanity each day has become more virulent, more malignant than ever. Ellul warned us that technology, which he defined as the one most rational and efficient means of accomplishing any task, presses human value out of any enterprise to which it is applied. Thus the automobile displaced walking and gave us smog, television displaced conversation and contributed to the destruction of family life, the telephone displaced correspondence and gave us the answering machine. Technology displaces the pursuit of the human with the pursuit of the efficient. Medicine and law simply reflect the values of the larger society in which they are practiced. Thus the ill effects of technology are no less pernicious in these fields than they are elsewhere in society. Using medical and legal technique as illustrative of the greater problem, I ask in this essay: From what sources does technique draw its power? Can society, law and medicine overcome technique? Can people wrest control of their lives from its dominion? In this essay I first seek to draw attention to the inherent power of technology, to human weakness for technology, and to the dehumanizing effects of technology. In aid of this effort, I synthesize the salient points of what Jacques Ellul and Eric Cassell have had to say about technology. I then examine In the Matter of Baby "K" as a case study of how law and medicine are presently unable to resist technology. Finally, I state what is necessary for society, law, and medicine to recover and maintain our control over technology in general and medical technology in particular. Jacques Ellul and Technique Until his death in May of 1994, Jacques Ellul was a theologian, historian, and sociologist of some repute in Europe and to a somewhat more limited extent in the United States. His thinking was distinctly dialectical, with its roots in both Barth and Kierkegaard. Though he once flirted with the Marxist explanation of history, he came to reject its principle that class was at the core of history, believing instead in the central place of technique. Born in 1912, he was trained in law, history, and sociology, obtaining his doctorate in law in 1936. He taught until 1980 in the Department of Law and Economic Sciences at the University of Bordeaux, where his professorship was in history and the sociology of institutions. His prolific output of writing is characterized by passion, contradiction and hyperbole. The central thesis of The Technological Society, to which Ellul dedicated so much of his life as a scholar and teacher, can be put this way: There is in society a powerful force, the phenomenon of "technique." A technique is the most rational and efficient manner--the "one best means"--for accomplishing any task, whether it be organizing a corporation or communicating through a network of computers. As examples, Ellul cites modern public transportation systems in which people are less important than parcels, hospitals in which patients are but numbers, television which retards human communication, computer games which lead to addiction to the screen, and automobiles which fascinate us with their speed and appearance, drugging us to the reality that they, too, have helped destroy our communities. Professor Willem Vanderburg explains Ellul's notion of technique this way: Our world has emerged from what Ellul calls a technical intention, the preoccupation of our civilization with the one best means of doing things. It involves studying every human activity and using the results to build some kind of model. By determining under which conditions the model functions best, one can restructure that activity to make it as efficient as possible. By technique, Ellul does not simply mean machines. Technique is a broader category of which the machine is an example. Technique, says Ellul, "transforms everything it touches into a machine", the result of which is the creation of "an inhuman atmosphere." Technique invades every aspect of life. In science, we find that no technique can resist immediate--and generally thoughtless--implementation. Technique "produces more technique whether it makes sense or not, whether it is needed or not." Thus, new car models must be produced each year, with one outdoing the other in marginally useful techniques---a button to tell us the temperature, another to raise the radio antenna. In the invention and application of technique, there is no concern for consequences. Here one might think of the unanticipated effects of the gasoline-powered auto engine with its deadly emissions, its destruction of community life, and the creation of urban sprawl. In public life, one finds that technique accomplishes the sterility brought about by the standardization and rationalization of the social, economic, and administrative spheres. Ellul's reference to hospitals is a too-painful reminder for anyone who has spent time as a patient in a large urban hospital. Ellul also explains the synergistic effect of the ensemble of techniques by reference to what he calls the "phenomenon of technique," which he describes as the convergence of systems of technique upon people, causing "operational totalitarianism." The result, says Ellul, is that "no longer is any part of man free and independent of these techniques." Humanity is enslaved to technique. Both spontaneity and traditional methods alike die. People find life devoid of meaning. What accounts for the dominance of technique? According to Ellul there is a set of inter-related, overlapping characteristics that creates the power of technique: *Automatism. The choice to employ a technique at all, as well as the choice among techniques, is automatic. There is no contest between spontaneous activities and technique: technique "automatically eliminates every nontechnical activity or transforms it into technical activity." As for choices among techniques, again there is never any doubt about the result. Technique dictates a decision in favor of "maximum efficiency." Let there be no question here about the extreme nature of Ellul's meaning. The force of technique operates without the intervention of personal choice, until the entire environment is controlled by technique. *Self-augmentation. A characteristic related to automatism is self- augmentation. Like a snowball rolling downhill, technique acquires more and more weight, speed, power, and magnitude the longer it rolls. But there the comparison ends. There is virtually no bottom of the hill at which technology will come to rest. As Ellul puts it, "Technical progression is of the same nature as the process of numbering; there is no good ground for halting the progression, because after each number we can always add 1." As technique grows, the role of people, though always necessary, diminishes to a point near extinction. One who believes, in the face of this reality, that people are masters of the process of production is gripped by illusion, for in reality technique self-generates. *Monism. The ensemble of all techniques creates the technical phenomenon. This phenomenon has no purpose other than to progress. It is not controlled by people nor directed by them toward certain moral ends but, rather, has its own technical morality: the use of technique and the growth of the phenomenon. Continued growth means immediate application of new techniques without examination of the consequences of the uses of the technique which, in the long run, are usually untoward. The phenomenon is driven by the cardinal principle of technique: efficient ordering. *Universalism. Technique knows no borders. All cultures, whether first world or third world, are affected by technique in the same way. Traditional cultural and economic forms as well as traditional psychological and sociological structures collapse: technique "dissociates the sociological forms, destroys the moral framework, desacralizes men and things, explodes social and religious taboos, and reduces the body social to a collection of individuals." Where tradition once stood, technique rules. Thus, Ellul is able to say that technique "cannot be otherwise than totalitarian....[E]verything must be subordinated to it....Technique can leave nothing untouched in a civilization. Everything is its concern." *Autonomy. Technique has dispensed with the need for human creativity. People are mere catalysts for technique, like the slugs that start slot machines: they "start the operation without participating in it." People are thus reduced in stature because technique accepts no rules or norms but its own. It has but one function: "to strip off externals, to bring everything to light, and by rational use to transform everything into means." The consequences of this characteristic are several. For people, they cannot have liberty in the face of technical autonomy. People must serve technique, not technique people. Perhaps more importantly, technique desacralizes the previously mysterious and then places itself on the throne of the sacred: Nothing belongs any longer to the realm of the gods or to the supernatural. The individual who lives in the technical milieu knows very well that there is nothing spiritual anywhere. But man cannot live without the sacred. He therefore transfers his sense of the sacred to the very thing which has destroyed its former object: to technique itself. In a postscript to his description of the characteristics of technique, Ellul charges technique with this final, devastating consequence: "...man is no longer able to recognize himself because of the instrument he employs." Eventually, with the "final integration of the instinctive and the spiritual by means of...techniques, the edifice of the technical society will be completed. It will not be a universal concentration camp, for it will be guilty of no atrocity. It will not seem insane, for everything will be ordered, and the stains of human passion will be lost amid the chromium gleam. We shall have nothing more to lose, and nothing to win. Our deepest instincts and our most secret passions will be analyzed, published, and exploited. We shall be rewarded with everything our hearts desired. And the supreme luxury of the society of technical necessity will be to grant the bonus of useless revolt and of an acquiescent smile." In the Matter of Baby "K": Technology as Addiction An anencephalic is not and cannot ever be a sentient human being. Thus, while there is much one can do to an anencephalic infant, there is nothing anyone can do for such a child. Accordingly, as a general rule, physicians cannot, and do not, treat anencephalics. How did it come about, nonetheless, that Baby K's mother could and did demand that a ventilator be attached to her daughter? How did it come about that the courts ruled for her? We must recognize, to begin with, the simple fact that the technological means to assist Baby K's breathing existed. Before the ventilator, physicians could only push breath into a patient's lungs by using a rather large and clumsy device called the "iron lung." Technology, however, is never content to stand still; it is self-augmenting. With the invention of the modern mechanical ventilator, small enough to push around on a cart, the iron lung became inefficient. There was a more efficient means, the ventilator. The choice to breathe with a new technology became automatic. Why use no means or less efficient means when very efficient ones were available? More to the point, why would one not employ the modern technology every time? It is the default position. Because the technology is there, it is used. There is no evidence that Baby K's doctors, like so many others who employ medical technology, gave much thought to, or had much discussion about, whether to employ the technology. They simply hooked it up as soon as the child was born. There thus is from the start no choice, no independent human volition, no reasoned decision-making. The move to technology is automatic. The technology of the ventilator, like all medical technologies, is also largely independent of human morality as a controlling and limiting force. The ventilator will work regardless of whether or not the finger pushing its buttons is connected to a person who has made a moral judgment about whether the technology should be employed. The finger could be attached to Adolph Hitler, the finger could be attached to Mother Teresa. The technology does not care. The ventilator has no moral value and no moral opinion. It can be engaged without the precondition of moral discourse. Indeed, Baby K was put on the ventilator so that the humans involved could have moral discourse afterwards. There is no morality to technology; there is only monism. The substance of technology is technology. Once it is in place (admittedly put there by human agency, but much like a slug starts a slot machine), technology needs very little human assistance. Modern ventilators, once they are programmed, operate quite nicely on their own. They are automatically supplied with oxygen by a tube connected to a wall outlet; this tube is then connected to a second tube in the patient inserted through either the patient's nose, mouth or hole cut in the patient's throat. Assuming a cooperative and stable patient, the machine, which regulates the amount of oxygen and air put into the patient and the timing of the breathing, can then be left running without the need of intervention for hours at a time. It will breathe on its own. The ventilator is autonomous. Even if one were to view this Ellulian interpretation of medical technology as exaggerating the power of technology as a force to itself, one would nonetheless have to concede that there is a powerful human weakness for technology. In his essay The Sorcerer's Broom, Dr. Eric Cassell identifies five human characteristics that make the use of technology in the medical profession difficult to resist: *Wonder. Cassell tells the story of a trip to a Pittsburgh medical center where his hosts show him the center's shiny new cardiac cath labs. "Why," he asks, didn't they take me by somebody's office (whispering, so as not to disturb) and say 'There's one of our smartest doctors'? Because everybody loves the new and the shiny...." *The lure of the immediate. Unlike patients, technologies give us hard and fast data, "unmediated by our own reasoning." For example, doctors prefer computer-generated EKG interpretations to patient interviews and examinations. "Science has ruled out of court the information from values...by which we lead our lives....One of the advantages of the immediate [by contrast] is that it provides information when more relevant understanding would require deeper reasoning and greater involvement from doctors as persons." *The lure of the unambiguous. Specific technologies produce specific results. This reality leads, says Cassell, to a diminishment in subtle distinctions and a narrowing down of the "field of difference between what is good and bad, so that ultimately one test result is taken for good and another result bad." *The dislike of uncertainty. It is not unreasonable for humans to seek certainty. Every profession values it. The difficulty lies in the fact that while medicine is a very inexact science, physicians are not trained in the "management of uncertainty....As a consequence, they tend to use any diagnostic or therapeutic technology that promises to reduce uncertainty. This produces a...law of technology: whatever technologies promises greater certainty. even if inappropriate, will diminish the use of technologies associated with greater uncertainty." *The lure of power. Doctors are drawn to technology because it confers power on them. Our society confers status and rank on people who have control over technologies which gather to themselves space and personnel. Technical power is particularly alluring because it affords young physicians power that they could not otherwise earn except through years of wisdom-building practice. This set of factors helps explain why the American medical establishment is quick on the technology trigger. The effects of such weakness for technology are enormous. While it is widely recognized that the spiraling cost of medical care can be ascribed in part to the misuse and overuse of technologies, what is less well-known is the depersonalizing effect technology has on the physician-patient relationship. Cassell makes the case that for the patient, the technology becomes the doctor and for the doctor, the technology becomes the patient. For the patient, the doctor fades in importance except as a technician. For the doctor, the patient is not the object of study, the patient's interaction with technology is the object of study. For each, the technological output, "the test results", become the real authority in the case. In Baby "K", the ventilator took on a much greater presence and authority than Baby K, her physicians or nurses. From the point of view of the patient and her mother, Contrenia Harrell's faith was not in her baby's doctors, who were telling her that based on their experience and study the bodies of anencephalic babies should not be kept breathing on ventilators. Her faith was in the ventilator. From the point of view of the physicians involved, their faith was not initially in the doctor-patient relationship or even their own medical judgment. Rather, it, too, was in the ventilator. Like a bad friend, by putting Baby K on the ventilator the hospital introduced the patient and her mother to the drug of technology. The patient and her mother quickly became addicted to it. The inherent dynamic of technology and the attraction of people to technology conspire in Baby K's case to give birth to the "operational totalitarianism" of technology. The ventilator controls all. Law as technique The Fourth Circuit Court of Appeals does nothing to challenge the jurisdiction of technology in its Baby "K" decision. Why? There are two reasons this court is capable of doing little else: To begin with, this court, like most courts, simply mirrors the norms of the society in which it operates. Why are courts conservative in this way? The answer lies in understanding how a court has any ability at all to see that its will is done. The power of a court to enforce its commands does not grow out of the physical means it has at hand to command enforcement; those means are quite limited. Rather courts rely heavily on whatever moral capital they have on deposit with the public for compliance. To prevent this account from being overdrawn, a court will issue decisions that require no or very little of the court's own moral capital. Brown v. Board of Education is the preeminent exception to this rule. Baby "K" is no Brown. Society is addicted to medical technologies. Ruling against the wishes of Baby K's mother would have meant requiring society to give up its technological fix. Mirroring society at large, the Fourth Circuit did not have the moral resources with which it could free society, Baby K's mother, or itself from dependence on technology. The second reason the Fourth Circuit did nothing to challenge the rule of medical technology is that the court itself is a captive of technique---in this case, judicial technique. A judicial decision that is pure technique is one that appeals to its authors for its lack of ambiguity, contains the promise of certainty, and is automatic, autonomous, and monistic. In the Matter of Baby "K" is all these. As such, the opinion is the perfect instrument for reinforcing the ascendancy of medical technology and manic aggressive medicine. Prior to the passage of the Emergency Medical Treatment and Active Labor Act of 1986 ("EMTALA") in 1986, hospitals engaged in, and were widely criticized for, a practice known as "dumping." Dumping occurs when a hospital, presented with an uninsured and impecunious patient in an emergency condition, refuses to treat the patient, sending the patient home or to another facility, typically a public or religiously-affiliated hospital. The results of "dumping" were predictable: the conditions of many patients suffered as a result of delay in care; some, in fact, died. EMTALA was enacted for one clear purpose: to prevent dumping. Through EMTALA the Congress intended to stop "dumping" by requiring hospitals that accepted Medicare patients (1) to offer presenting individuals "an appropriate medical screening examination ...to determine whether or not an emergency medical condition...exists"; and (2) to provide the medical treatment "required to stabilize the medical condition" or to transfer the individual elsewhere if the benefits of a transfer outweigh the risks. The fact with which the Fourth Circuit could never seem to come to grips was that the Baby K case was not a dumping case. There was never any question that there would be third-party payment; indeed, Baby K's hospital bill, totalling nearly $250,000, was paid in full. Despite the well-publicized outcry over dumping that led to the enactment of EMTALA and despite the court's own admission that EMTALA was enacted to prevent dumping, the argument structure of the majority opinion in Baby "K" appears to have been designed by a literalist, textualist court that had no use for the legislative history that makes EMTALA's purpose crystal clear. The argument structure is as follows: 1. There is a federal statute called EMTALA. 2. It requires that hospitals provide stabilizing care to all who present with emergency medical conditions. 3. Fairfax Hospital is a hospital. 4. Respiratory distress is an emergency medical condition. 5. Baby K presented with respiratory distress at Fairfax Hospital. 6. A ventilator can stabilize a patient with respiratory distress. 7. Fairfax must put Baby K on the ventilator. All this business of applying the statute takes place in but two paragraphs, the second of which concludes: In sum, a straightforward application of the statute obligates the Hospital to provide respiratory support to Baby K when she arrives at the emergency department of the Hospital in respiratory distress and treatment is requested on her behalf. The process is automatic and the opinion is autonomous; the court is just the slug that starts the statute and facts in the process of writing their own opinion. The decision is arrived at through a technical reading of the words of the statute and a mechanical application of it to the facts. In fact the court nearly says as much: "When a statute is clear and unambiguous, we must apply its terms as written." In the remainder of its opinion, the Court rejects the four arguments of the Hospital as to why it should not be required to provide ventilation to Baby K. The Court's response to these arguments constitutes an effort to limit the discussion, insofar as possible, to the text of EMTALA and therefore keep the opinion on technical grounds. The Hospital's first argument is that EMTALA only requires that emergency patients presenting with the same condition be treated in the same manner. In other words, as long as the Hospital treats Baby K in the same way it treats all anencephalic babies, it would not be liable for violating the Act. The Court rejects this argument by stating that if the hospital's position were correct the hospital "could provide any level of treatment to Baby K, including a level of treatment that would allow her condition to materially deteriorate, so long as the care she was provided was consistent with the care provided to other individuals." This language implies that in some instances anencephalics in fact receive more than comfort care or that, EMTALA aside, they should receive more than comfort care. The reality is, according to the chair of the American Academy of Pediatrics ethics committee, that "[t]here is not a physician in the country who thinks you ought to treat anencephalics." The Court chose, however, to ignore this extra-EMTALA reality. In further defense of its position, the Court quotes an earlier Fourth Circuit EMTALA decision, Baber v. Hospital Corp. of America: "[H]ospitals could theoretically avoid liability by providing cursory and substandard screenings to all patients...." This fanciful reasoning also efficiently restricts itself to the closed system of EMTALA law. What is ignored here is simply the entire body of malpractice law. Hospitals which provide only "cursory and substandard screenings to all patients" will be successfully sued by patients injured as a result of such screening. To think that a hospital's risk manager would permit across-the-board "cursory and substandard screenings" is to have an incomplete and unrealistic understanding of the legal world. The second argument advanced by the Hospital was that it was not the intent of EMTALA to force doctors to go outside the prevailing standard of care. The heart of the Court's response is this statement: We recognize the dilemma facing physicians who are requested to provide treatment they consider morally and ethically inappropriate, but we cannot ignore the plain language of the statute because "to do so would 'transcend our judicial function.' " Translated, the court is saying: "It is absurd to think that in preventing doctors and hospitals from dumping patients, the Congress intended to require doctors to treat patients whom they are not dumping in ethically and morally inappropriate ways. We are not permitted, however, to exercise our reason to reach this conclusion." Again, the universe of law is the world of EMTALA law. The use of reason would create inefficiency in that the Court would have to take the time and expend the energy to reason from the purpose of the legislation through the facts of this case to a just result. The Hospital's third argument---that Virginia law permits physicians to avoid that which is medically or ethically inappropriate---fared no better. The court had two essential responses: (1) state law must give way to federal law when a valid ' "act of Congress, fairly interpreted, is in actual conflict with the law of the state" '; and (2) EMTALA does not include exceptions for medically and ethically inappropriate treatment. Once again, this court cannot get beyond the bounds of the EMTALA text. To accept the Court's reasoning here, one must be prepared to accept not only the proposition that the statutes are in conflict (how could they be when EMTALA is silent about ethics and morals?) but the further proposition that Congress either (1) actually intended to have physicians engage in unethical and immoral practices in order to carry out EMTALA or (2) the Congress never thought about the issue. In either case, it is patently ridiculous to read the ethical and moral standards of doctors out of a statute. Doing so, however, keeps the court's decision from moving into an area that requires more than just the ability to read. Finally, the hospital argued that EMTALA only applies to patients being transferred from the hospital in an unstable condition. While this is the hospital's weakest argument, the court's handling of it reveals much. The Court resorts to interpreting the intent of Congress! But it does so in a peculiar way. It baldly states that the hospital's interpretation was not the one intended by Congress---without citing as authority a single word of legislative history or offering any textual analysis. Rather the court cites two cases from other circuits, neither of which cites any legislative history for the point for which the Baby "K" court cites them. The result in Baby K is a conclusory statement with no authority and no reasoned argument to support it. Surely, this is the most efficient way of all for reaching decisions. What is the net effect of the Court's rejection of the hospital's four arguments and its earlier embrace of the position that the statute's plain terms speak for themselves? The net effect is that the Court has transformed the physician into a technique. He or she must cast aside all concern for morality and for ethics and connect ventilators to anencephalic babies. He or she must cast aside any use of professional judgment as to what procedures are medically indicated and which are medically futile. The physician is simply an unintelligent slug who starts the machine running. Baby K gives us this result because the court embraces an approach to law-making that guarantees the security of certainty and avoids the discomfort of ambiguity. Certainty and clarity would be threatened if the opinion were to take seriously the question of whether the purpose of the Act is fulfilled in this case by requiring the ventilation of an anencephalic baby. While the opinion acknowledges the purpose of EMTALA, the monistic nature of this technical opinion prevents the court from doing more than saying "we cannot ignore the plain language of the statute...." To discuss the human is all too difficult for this court. A technical opinion, by contrast, allows the judges in the majority to remove themselves from responsibility. The Court in effect says, "We have no role in the decision as to whether this child should be allowed the death that is hers; we are apart from this decision. We can do no more or less than let the statute's words and the facts work their way. We do not prescribe this ritual. We simply stand to the side while it unfolds." The Baby "K" opinion is thus technique inside technique. In enforcing the regime of medical technique through legal technique, it is part of the operational totalitarianism of which Ellul warned. But should we expect anything more from this or most other courts inasmuch as courts generally reflect the views of the societies of which they are a part? Defeating Death We should not---but for an important reason in addition to those already discussed. There is about in the land, and at work in Baby "K", a powerful factor without mention of which any analysis of the case and of medical technology would be incomplete. Baby K's mother, like so many of us are wont to do, had made a god of physical life. Ostensibly, she professed her faith in a different god, the God of Christianity. Indeed the trial judge wrote of Ms. Harrell that she "believes God and not other humans, should decide the moment of her daughter's death." Ms. Harrell, however, was apparently blind to the reality that by insisting on continued ventilation for her dying daughter she was wrestling with God for control over the time of this child's death. In the context of this case, God for Ms. Harrell was not a spiritual God who transcends the boundaries of life and death, but immediate physical life. The continued physical life of her child was the supreme value in her world. Technology was the priest that would negotiate her child's journey down the dark, death-threatening paths she must take and bring her out into the sunshine of continued physical life. With the intercession of this priest, she expected that her child would live on and on. In this Contrenia Harrell is not an aberration. She is the perfect reflection of modern American society and its reliance on modern, technical American medicine. In our modern- technical culture people are not supposed to die. For every disease there should be a cure, for every problem an answer. The goal is to defeat death--any death, all death, every death. The purpose of technique, after all, is to exert control over inefficient natural and other forces. Just as we conquered smallpox, we are intent on conquering heart disease. After we conquer heart disease, we will conquer cancer. After we conquer cancer, we will conquer Alzheimers. We are to live forever. This is the illusion to which technique has brought us. A Human Response to Technique: the Role of the Transcendent For Ellul, technology in modern life constitutes a closed system that incorporates and dominates everything around it. It knows no boundaries as it negates the meaning of the individual and suppresses the value of culture and tradition. Indeed, the purposes of existence itself "gradually seem effaced by the predominance of means. Technology is the extreme development of means." Technology even attempts to consume that which is uniquely human: "...in growing, technique requires that human values be in exact accordance with technological development and that social structures develop purely in terms of technology. This...shows that nothing in society remains intact once technique begins to penetrate." In keeping with the tension of dialectical reasoning, Ellul posits that since that which is within technique inevitably becomes technique, only a force that stands outside of technique can stand against technique. Ellul identifies this force as the transcendent, that which is "outside and cannot be assimilated." Although the transcendent exists in a dimension different from the "horizontal" dimension on which we operate in our blindness, the transcendent is also "the presupposition without which there can be no concept of anything external to modern technique." The importance of the transcendent cannot be overstated. Ellul says: "If hope is still possible, if there is the possibility of humanity continuing, if there is any meaning in life, if there is an outcome other than suicide, if there is a love that is not integrated into technique, if there is a truth that is not useful to the system, if there is at least a taste, a passion, a desire for freedom, and a hypothesis of freedom, then we have to realize that these can have their basis only in the transcendent...." In pre-modern times, humanity found the transcendent in the gods of nature. These, however, were but a mirror on the natural world. A God who was truly transcendent, however, would be limited neither by the natural world nor by history. Moreover, a transcendent God would be free from humanity's horizontal perspective. Ellul finds the transcendent, so understood, in the God of Israel, because such a God is "not in the least coincident with the technological environment", indeed is "not the product (even a product necessary and indispensable to human survival) of the human heart or human thought." Ellul also finds the presence of the transcendent in Jesus Christ through whom the transcendent intervenes in human history and breaks through technique to humanity. However one defines the transcendent and wherever one finds it, it is clear that to break the hold of medical technology, patients, patients' families and physicians must be able to discuss, and in some instances call upon, a faith in the transcendent. Only such a faith will permit them to see beyond the god they have made of mere physical existence to some greater reality. Faith in the transcendent will inevitably result in patients and their families recognizing the imposition of medical technology in hopeless end-of-life situations as a threatto their most cherished beliefs, not an aid to them. Consider, for example, those cases in which the patient and the patient's family hold to a belief in the existence of a soul. When the condition of such a patient is terminal, belief in the soul does not merely make withdrawal of futile life support technologies tolerable, it can actually bring a certain comfort and a measure of healing to the patient and the family. The painful fact is, however, that our culture, with its laissez-faire attitude toward the spiritual life, is an overly secular culture, for a culture without values that transcend the material world is a culture whose law and medicine cannot resist technique. In particular, there is not sufficient public discourse on the transcendent to authorize and make comfortable private discussions about the transcendent between and among physicians, their patients, and patients' families. Rather, ours is a culture in which it is considered awkward, embarrassing, and even invasive to speak of the transcendent. A colleague, for example, tells of an oncologist who feels it is not acceptable to raise spiritual matters with patients directly. Instead, he finds himself forced to send indirect signals to his patients that, if they want to talk about the spiritual, he is interested in the subject. (At the end of the first patient-doctor meeting, he sends the patient on his or her way with, "See you next week. You'll be in my prayers.") The caution this physician exercises arises from the nature of our public life which excludes from public discussion serious talk of the spiritual. Indeed most physicians feel so awkward about the spiritual that they would not take even the small step this oncologist takes. Why does our public environment keep the spiritual life off the agenda? The answer lies in part in the moral and political atmosphere created by a misapprehension of the doctrine of separation of church and state. Properly understood, this doctrine serves us well; by taking government out of religious discourse, it leaves room for all to follow their own individual religious consciences. Improperly understood, however, it harms us when it contributes to a cultural understanding that discourse about religion is somehow embarrassing to the speaker, coercive to the listener or invasive of the privacy of others. Thus legitimate public religious discourse is constricted. Of late, however, the Supreme Court and the President have displayed a renewed sensitivity to this distinction. While the Court has, properly enough, done nothing to change its rulings that involuntary prayer in the public schools is a violation of the establishment clause, it has prevented school authorities from banning constitutionally permissible religious exercise. For example, in Board of Education v. Mergens the court held that high school students could not be banned from having meetings of their religious clubs on school property after-hours when other clubs, also unconnected to the curriculum, were permitted access. In Lamb's Chapel v. Center Moriches Union Free School District, the Court held that when a school which permits groups to uses it facilities, denies after-hours use of its building to a church because it desires to publicly screen a religious film on family issues, it violates the free speech rights of the church. Earlier, in Widmar v. Vincent, the Court used the free speech provision of the First Amendment to strike down a state university regulation banning the student use of school grounds for "purposes of religious worship or religious teaching." Similarly, the President has taken the position that just because prayer in schools is impermissible, that does not mean that religious discourse cannot take place there. As reported by the New York Times, the President is going "out of his way to emphasize the protection...afforded by the First Amendment, noting that the same clause that bars "establishment" of a state religion also prohibits the Government's impeding "the free exercise" of religion, a truth that he said had been obscured by recent political debate." There is certainly an ever-present establishment danger that government will engage in impermissible discourse any time religion in discussed in the public square; but the Court and the President seem to appreciate that there are equally grave dangers when private individuals are banned from such speech. Our constitutional jurisprudence, therefore, may yet play a role in permitting the discussion of the transcendent in the public square. The academy can make a similar contribution by helping expand the bounds of what is permissible public discourse. Indeed, there has already been an encouraging discussion in the academy of the reasons the spiritual life as a topic is absent from public discourse in America. In 1993, Professor Stephen Carter's book, The Culture of Disbelief, in which he argued that "we have created a political and legal culture that presses the religiously faithful to be other than themselves", drew widespread attention, including that of the President. Shortly afterwards Professor Warren Nord wrote Religion and American Education: Rethinking a National Dilemma. Professor Nord attacks the warped sense of "neutrality" which educational institutions use to justify the exclusion of the study of religious thought from the public schools, claiming that knowledge of religion is an essential element of a liberal education. Earlier Professor Michael Perry published Love and Power, in which he defended "religious politics" by which he means "a politics in which persons with religious convictions about the good or fitting way for human beings to live their lives, about the "truly, fully, human" way to live, rely on those convictions, not only in making political choices, but in publicly deliberating about and in publicly justifying those choices." Might this discussion by academics of things spiritual, joined with more toleration, even support for, religious discourse on the public square by the Court and centrist political leaders, be the first steps in the creation of a culture in which belief in the transcendent is taken seriously? These are, at least, hopeful signs that perhaps one day not too distant, patients, patients' families and physicians might find themselves in a culture open to those who believe that there is a more important reality than mere physical life. The stage will then be set for people to throw off the dominion of technology. Perhaps we will be emboldened to follow Ellul's urging to affirm the "transcendent over against technique" and in so doing embrace a certain nonconformity. We will revolt against the attachment of respirators to babies without cerebrums, oppose the insertion of feeding tubes into patients without hope of consciousness, and rebel against the administration of chemotherapy to dying patients. Knowing that freedom is often gained in resistance, we will refuse to worship at the altar of technique.