By Mike Appleton, Weekend Contributor
“We strongly believe that the order that let to the termination of life support is in complete contradiction to Texas law that was enacted to protect pre-born babies just like the Munoz child. The courts have failed this baby, the attorneys who should have defended Texas law has failed this baby, and the hospital has failed this baby. May this tragedy serve as a wake-up call to our society, lest others wrongly fall victim to this dehumanizing utilitarian view of life and death.”
-Operation Rescue, Press Release, January 26, 2014
“It never occurred to us that anything in the statute applied to anyone who was dead. The statute was meant for making decisions for patients with terminal or irreversible conditions.”
-Thomas Mayo, associate professor of law, Southern Methodist University School of Law (quoted in Fort Worth Star-Telegram, January 24, 2014)
When Tarrant County district judge R. H. Wallace, Jr. decided the case of Erick Munoz v. John Peter Smith Hospital, the judgment required only two paragraphs. “The provisions of Section 166.049 of the Texas Health and Safety Code,” he wrote, “do not apply to Marlise Munoz because Mrs. Munoz is dead.” Given this conclusion, it became unnecessary to consider the constitutionality of the statute, and the court declined to do so.
The court’s ruling was sane and rational. But in my opinion it was also obvious. And that raises the issue of why the hospital refused to respect the wishes of the Munoz family without a court order, despite its admission in court filings that a medical determination of brain death had been made by November 28th of last year.
The hospital was certainly not concerned with liability to the Munoz family, who repeatedly requested the termination of life support. Was it worried about potential prosecution for violating the statute? Were that the case, it could have filed an action for declaratory relief itself. At the beginning of the controversy, J.R. Labbe, the hospital’s spokesperson, stated that the decision to continue life support had been “easy.” But when the hospital complied with the court order earlier today, Ms. Labbe stated, “From the onset, JPS has said its role was not to make nor contest law but to follow it.”
The hospital unnecessarily prolonged the anguish of the Munoz family for almost two months, taking no action and forcing Mr. Munoz to file suit himself. It then quietly complied with the court order without acknowledging that it had any more responsibility for the impasse than that of the average bystander. It is reasonable to argue that the hospital’s decision-making was more heavily influenced by political and religious considerations than by legal or bioethical analysis. Those considerations go to the heart of this tragedy and they remain unaddressed.
The statute at issue in the Munoz case is a provision in the advance care directives laws of Texas that forbid withdrawing or withholding life-sustaining treatment from a pregnant patient. The statute, similar to those in a number of other states, is actually a type of nullification act. It does not recognize a woman’s constitutional right to privacy described in Roe v. Wade, 410 U.S. 113 (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It contains no exceptions based upon the viability of the fetus or the medical condition of the pregnant patient.
Similarly, the statute fails to acknowledge the right of a terminally ill patient to require that life-sustaining treatment be withheld or withdrawn, a right recognized in Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 291 (1990) and Washington v. Glucksberg, 521 U.S. 702 (1997). In essence the Texas legislature has declared that the rights of a terminally ill pregnant woman are subordinate in all respects to the rights of the fetus, regardless of the stage of gestation or the consequences to a dying woman of maintaining the pregnancy. What the hospital did in the Munoz case was attempt to extend this control to a point even beyond death.
The court was unable to confront these constitutional infirmities in the Munoz case. While the Munoz family can finally mourn the loss of a wife and daughter and mother, it will likely require that another family suffer another tragedy before this statute can be successfully challenged.