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When Anti-Euthanasia Legislation Goes Wrong: A Moral Critique of Texas SB 2089

Joe Kral, M.A.  |  13 May 2019

When a person has reached the end stage in life and nothing will stop him from imminently dying the doctor should not be forced to provide something that will not only cause greater harm to the patient but is contrary to the dignity of the dying person that is made in the Imago Dei. Causing harm, even to the dying, is an act against life. This is why it is absolutely necessary to balance the rights of doctors and patients under the law. This is reasonable since it seeks to balance the rights of two moral agents (the doctor and patient) who are truly seeking the physical good of the patient. The law must be careful as to not allow one to have complete power over the other, otherwise abuses will occur. If the doctor has absolute power over the patient, he can simply euthanize the patient if he so desires. If the patient has complete power then the hypochondriac can tell the doctor to perform unnecessary surgery. At stake here, is the very principle of “First do no harm.”

 

The current Texas “Ten Day Rule” Law[i] is at issue. In brief, if a patient or his surrogate is requesting life-sustaining treatment that the physician has determined to be futile, then a specific process kicks in where a hospital ethics committee reviews the physician’s refusal. The committee then can either agree or disagree with the doctor. If the patient or his surrogate disagrees with the committee decision then the hospital will work with the patient during a ten day period to try to find a physician or another facility who will provide for the care the patient has requested. After the ten day period the hospital is not obligated to provide continued “life-sustaining treatment” unless directed to do so by a court of law. To be very clear here, Texas law is clear that both voluntary and involuntary euthanasia are illegal. As the statute states, “This subchapter does not condone, authorize, or approve mercy killing or permit an affirmative or deliberate act or omission to end life except to permit the natural process of dying as provided by this subchapter.”[ii] The law, as a whole, works to balance both the patient’s and physician’s rights so that one does not have complete control over the other. If the patient does not agree then the patient has the ability to be heard and transferred to another facility or physician.

 

The law was implemented in 1999 and has had a few changes over the years. For example, the most recent change occurred in 2015 when the law was amended to ensure that artificial nutrition and hydration are administered during the proceedings unless reasonable medical judgement shows that this treatment would be physically harmful to the patient or has been clearly indicated in documentation that the patient does not desire such treatment. So what exactly is the problem? To put it simply, some believe that the “Ten Day Rule” is a loophole.[iii] So SB 2089 was filed in the Texas Senate. But that alleged criticism needs to be looked at with all seriousness. Is it actually a loophole or could it be what other pro-life proponents are claiming it to be, a carefully crafted law that balances the rights of patients and doctors? [iv] To begin with, one should look at exactly what SB 2089[v] does. In essence, it turns the “Ten Day Rule” into an indefinite period of time. This specifically happens on page 2, lines 14-17 of the bill where it merely states that “the patient is transferred to another physician or health care facility willing to comply with the directive or treatment decision to provide life-sustaining treatment to the patient.” So the question becomes what does this all mean?

 

To begin to answer that question, one can look at the testimony of Wesley J. Smith, a prominent pro-life activist and lawyer, in support of the bill.[vi] Consider this critique by Mr. Smith, “To fully comprehend the unjust nature of Texas law in this regard, realize that these “futile care” or “inappropriate care” decisions do not terminate treatment because it won’t work, but because it does. It is keeping the patient alive when the doctor/bioethics committee thinks the patient should die.” However, Mr. Smith does not take into account the reality that 1) he is making an overgeneralization, that is he is implying that all doctors and nurses who care for these patients want their patients to die[vii] and 2) that unnecessary medical care cannot stop death. Furthermore, Mr. Smith seems to miss one major point that St. John Paul II raised when it comes to medical care,

Furthermore, when he denies or neglects his fundamental relationship to God, man thinks he is his own rule and measure, with the right to demand that society should guarantee him the ways and means of deciding what to do with his life in full and complete autonomy. It is especially people in the developed countries who act in this way: they feel encouraged to do so also by the constant progress of medicine and its ever more advanced techniques.[viii]

 

St. John Paul II recognizes that even with advanced medical technology one is not able to stop death. Death comes for all regardless of medical advancement. It is part of the physical condition of man. But because of man’s hubris in advancing medical technology this leads to the next point. Secondly, St. John Paul II recognizes that complete patient autonomy can be dangerous. Why? Because it refuses to recognize the autonomy of the doctor as a moral agent. On one hand, complete patient autonomy says assisted suicide is okay even if the doctor who does not want to participate is forced to participate on the basis that the patient desires this, on the other it also posits that ineffective or unneeded treatment is a “good” as long as the patient wants it, even if it is against the conscience of the doctor to administer such treatment. Both are morally problematic since neither assisted suicide nor disproportionate treatment are actual goods. Not to mention that it is contrary to the autonomous rights of the doctor since he is forced into treatment merely by what the patient wants and not by what is actually needed.

 

Mr. Smith’s assertion that doctors think that “medically futile” patients should die leads to his idea of complete patient autonomy. Hence, the indefinite time period. The patient has the final say for Smith, the doctor and hospital must provide treatment for an indefinite period of time. In many ways, this sets up a legal precedent that is contrary to a Natural Law ethic and contrary to a Culture of Life. It forces doctors to provide treatment contrary to their honest objections when the treatment can be harmful and unnecessary. When the law creates a precedent for forcing treatment contrary to proper conscientious objections it creates a new evil under the law. It strips away traditional rights of a physician and replaces it with a mandate that can cause great harm. After all, if a doctor can be forced to treat a dying patient with a remedy that can do more harm to the patient (such as exacerbate the dying process), then he could be forced to abort an unborn child when abortion might be seen as a “treatment” for the mother. He might even able to be forced to “treat” the hypochondriac as well. There is a clear and evident danger of forcing doctors to treat when treatment is truly not needed. This is why the current law balances the autonomy of both physician and patient. When there is a conflict regarding what the patient wants and what the doctor recommends it goes to a medical ethics committee. If the patient does not like the result, the conflict can then proceed to court.

 

Mr. Smith continues in his published testimony, arguing that the current resolution process is inherently unfair. In fact, he refers to the hospital ethics committee as “quasi-judicial”. He also asserts that this quasi-judicial committee also does not follow judicial-type of procedures such as cross-examination of witnesses, no transcript is made (as in court), and there is no right to appeal. So the question must be asked, is the current system inherently unjust? It must be noted that the law must provide justice for the citizen and classically speaking, justice is that which is due (or owed) to another. So, is the patient owed a judicial setting? Interestingly, current law addresses this question by allowing the patient or surrogate to file in the proper county or district court if he wishes to extend the ten day period. At that point the patient or his surrogate must prove by a preponderance of evidence that he is likely to find another physician or hospital.[ix] Two issues need to be noted here: 1) the hospital ethics committee is not meant to be an adversarial proceeding along the lines of a courtroom and 2) the courtroom is designed to be the check on the hospital, the physician, and the hospital ethics committee and even the patient. The Hospital ethics committee is seeking to either affirm or not affirm the physician’s findings. If the patient disagrees with the findings of the committee he has the right to take the matter to court; it is there that adversarial proceedings can begin. But furthermore, the complaint that there is no appeal process within the law completely ignores the fact that the law allows one to go to court thereby appealing the decision of the physician and affirmation of the committee. As the law is crafted, it allows for the rights of both the patient and physician to be balanced. If the patient is truly not in a medically futile position, the court is more than able to make that determination by the cross examination of various medical experts.

 

But it needs to also be noted within this argument what St. John Paul II also has to say about what he terms as disproportionate treatment,

Euthanasia must be distinguished from the decision to forego so-called "aggressive medical treatment", in other words, medical procedures which no longer correspond to the real situation of the patient, either because they are by now disproportionate to any expected results or because they impose an excessive burden on the patient and his family. In such situations, when death is clearly imminent and inevitable, one can in conscience "refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted". Certainly, there is a moral obligation to care for oneself and to allow oneself to be cared for, but this duty must take account of concrete circumstances. It needs to be determined whether the means of treatment available are objectively proportionate to the prospects for improvement. To forego extraordinary or disproportionate means is not the equivalent of suicide or euthanasia; it rather expresses acceptance of the human condition in the face of death.[x]

 

Here, it needs to be made very clear that the patient has the right to reject extraordinary or disproportionate treatment. This is what is being meant by the term “disproportionate care” because the care is unreasonable. But what about the doctor? What is his role in this? St. John Paul II enlightens the reader,

To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself, the authentic meaning and purpose of which are found in its orientation to the true and the good, would be radically compromised. What is at stake therefore is an essential right which, precisely as such, should be acknowledged and protected by civil law. In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane.[xi]

 

The doctor also has the right to refuse to provide disproportionate treatment. The doctor has the moral duty not to harm the patient and if the doctor believes the treatment will bring physical harm to the patient, he ought not provide treatment. St. John Paul II is being careful in this regard. He certainly recognizes that, morally speaking, there is a balance of rights at stake here.  On the one hand a patient does have the right to request treatment that will heal his body precisely because he has the moral duty to seek health. On the other hand the doctor has the right to refuse disproportionate treatment because it has the very real potential of harming the patient and the doctor has the moral duty not to cause harm.

 

So by creating an indefinite time period, the new law essentially would render the court process moot. The patient forces the doctor to continue care even when it is wrong to do so. The physician would have no recourse to the court since the process is meant to extend the time (which would no longer exist).  As a result of rendering the court proceedings meaningless under the law, there no longer is a balance of rights. This is why it is necessary to have a definite time frame. As was stated earlier in the article, a new law is not meant to create new evils but to stop existing ones. If enacted, SB 2089 would have the effect of forcing doctors to potentially harm their dying patients. Furthermore, it has the potential of setting a precedent in Texas law that could eventually lead to doctors being forced to provide abortions when abortion is seen as a treatment.  

 

What is being said is that the right to conscientious objection is something to be protected by civil law. Failure to do so amounts to an injustice being committed. When assessing whether a piece of legislation is actually going to contribute to the common good, an ethicist must be clear if the law is going to do what it is purported to do or if it will create new evils. If the determination is made that the legislation will create new evils, that initiative must be opposed or amended to prevent the evil from happening. This is why pro-life legislation must be carefully crafted and not rushed. Unintended consequences can have disastrous effects. This is why SB 2089 is so dangerous. Regardless of what proponents of the bill say, the simple truth is that it strips away the current balance under the law. It further endangers vulnerable patients by putting them in harm’s way and could potentially have a chilling effect on encouraging doctors to properly practice end-of-life care by forcing them to treat when it is not physically proper to treat. SB 2089 demolishes that balance and seeks to replace that balance with an injustice, as a result it is neither reasonable nor the common good.

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[i] See Texas Health and Safety Code Chapter 166, section 46.

[ii] See Texas Health and Safety Code Chapter 166, section 50.

[iii] Interestingly, there have been attempts to lengthen the number of days. The most recent attempt was in 2013 with SB 303 which attempted to amend it to 21 days. This bill was supported by the likes of Texas Alliance for Life, Texans for Life Coalition, Texas Catholic Conference, and the Texas Medical Association.

[iv] You may see Texas Alliance for Life’s statement here: https://www.texasallianceforlife.org/alerts/urgent-legislative-alert-5-6-2019/. Texans for Life Coalition and the Texas Catholic Conference of Bishops have also taken positions opposing SB 2089.

[v] The bill may be viewed here:

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/SB02089I.pdf#navpanes=0.

[vi] Mr. Smith’s testimony was published in LifeNews.com. It may be viewed here: https://www.lifenews.com/2019/04/24/texas-rule-allows-hospitals-to-essentially-euthanize-patients-after-a-10-day-notification/.

[vii] Mr. Smith also does not provide any quantitative or empirical evidence such as statistics indicating that this assertion is the medical “norm” for physicians who care for dying patients. As a result, this argument falls into the category of the fallacy of Ipse Dixit. The mere assertion is not proof itself.

[viii] Evangelium Vitae, no. 64.

[ix] See Texas Health and Safety Code Chapter 166, section 46, subsection G.

[x] Evangelium Vitae, no. 65.

[xi] Evangelium Vitae, no. 74.

Joe Kral, M.A, is President of  the Society of  St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.