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Broad Loopholes and the National Catholic Bioethics Center

1.         An avid SB 303 supporter stated to me recently with regard to Section 166.046(e) (exceptions to providing artificially administered nutrition and hydration, discussed in a previous post) that “One may argue that those four criteria are too broad and serve as ‘loopholes.’ However, they were written and approved by Dr. John Haas and others at the National Catholic Bioethics Center, including Fr. Tad, as necessary to be consistent with Catholic moral doctrine.”  Later, he provided me this link as support of the contention that “SB 303 is consistent with solid Catholic teaching”:  http://www.txcatholic.org/images/docs/NCBC_Ltr.pdf

2.         The letter of the NCBC makes the point that this bill is subject to numerous interpretations rendering it something that “we’ll have to pass first” to know how it will be applied later.   Lives are at stake and we cannot let that happen. The first full paragraph on the second page goes into some detail about what they mean by “diligent” in “reasonably diligent effort.”  That same paragraph addresses various scenarios where the term “irremediable” pain could have applications that the supporters say is “unrealistic.”  The paragraph goes on at some length about the exceptions to providing continued care, including AANH.  And, all this shows is exactly what makes this bill problematic.  It is capable of many interpretations because it is patently unclear.  Who will interpret this?  The doctor who has already decide that continued care is futile, the ethics committee that is part of the same hospital, with the patient or surrogate guided by a hospital appointed (and paid?) liaison:  a setup with inherent conflicts of interest?  A court?  No, not a court because that avenue has been foreclosed by the same bill.

3.       For all practical purposes, endorsements do not mean much nor do the resumes of the authors when it comes to law.  Look to the language.  The intent of the authors, supporters, or endorsers is irrelevant.  Even statements of intent in legislation will not trump the actual language.  In the end, all that matters is what was – and was not – written and defined.  And, there is a big difference between what seems to work when drafters are looking at it, are clear about what they intend words to be defined as and how they intend them to be applied versus how things pan out “in the real world” with other people with other backgrounds and agendas applying those words that were never defined to real people’s lives and health.

4.         Quite telling was the second to last paragraph on the third page of the letter, where the NCBC seems to hedge some:

The are two points that The National Catholic Bioethics Center wishes to clarify, that perhaps pertain more to drafting problems than intent.  The proposed statutory revisions, when addressing the rights of the patient or surrogate decision-maker, clearly intend that the surrogate only is the decision-maker if the patient no longer is able to communicate his wishes.  Secondly, it is agreed that at the time the patient/surrogate requests a second opinion concerning a Do Not Resuscitate Order, that the order is to be enjoined, unless based on reasonable medical judgment, death is expected in days to weeks and resuscitation would be medically ineffective.

5.        But “imminent” is not defined at all, much less to be that narrow a timeframe in this bill.  Also, the lack of ability to communicate is not the only reason a surrogate would take over as the decision-maker based on the definition of “incompetent.”  Also, this gives no indication as to whether it is intended that the surrogate include the doctor plus one other person.  Thus, appeals to NCBC are even less meaningful when certain “intentions” by NCBC are already not met by the flawed language of the bill.

6.        This letter was sent to try to prove the that this bill is “consistent with solid Catholic teaching.”  The letter provides one footnote to the USCCB’s Ethical and Religious Directives for Catholic Health Care Services, Washington, DC:  USCCB (2009), citing paragraph 33:  “The well-being of the whole person must betaken into account in deciding about any therapeutic intervention or use oftechnology.  Therapeutic procedures that are likely to cause harm or undesirable side-effects can be justified only by a proportionate benefit to the patient.”  Pay attention to the term “proportionate” in this sentence and then compare it to the use of that same term below in Blessed Pope John Paul II’s Address.

7.         That Directive was, as its title indicates, for Catholic health care services.  It was not written to guide this type of legislative drafting.  That said, it did provide in footnotes 40 and 41, citations to two documents that are directly applicable to this situation and which completely undermine any supporter’s assertion that the withdrawal of AANH provided for in this bill “is consistent with solid Catholic teaching.”

8.         The first is the ADDRESS OF JOHN PAUL II TO THE PARTICIPANTS IN THE INTERNATIONAL CONGRESS ON “LIFE-SUSTAINING TREATMENTS AND VEGETATIVE STATE:   SCIENTIFIC ADVANCES AND ETHICAL DILEMMAS” delivered on March 20, 2004.  http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/march/documents/hf_jp-ii_spe_20040320_congress-fiamc_en.html

9.      This Address was 15 days after Judge Baird of the 6th Circuit Court of Appeals ruled that ‘Terri’s Law’ was unconstitutional on May 5, 2004.  (“Terri’s Law afforded Governor Bush the authority to order to reinstatement of Terri’s nutrition and hydration and the appointment of an independent Guardian ad Litem.”  See:  http://www.terrisfight.org/timeline/)

10.       What is significant is what Blessed Pope John Paul II said in this address:

I should like particularly to underline how the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory, insofar as and until it is seen to have attained its proper finality, which in the present case consists in providing nourishment to the patient and alleviation of his suffering.

The obligation to provide the “normal care due to the sick in such cases” (Congregation for the Doctrine of the Faith, Iura et Bona, p. IV) includes, in fact, the use of nutrition and hydration (cf. Pontifical Council “Cor Unum”, Dans le Cadre, 2, 4, 4; Pontifical Council for Pastoral Assistance to Health Care Workers, Charter of Health Care Workers, n. 120). The evaluation of probabilities, founded on waning hopes for recovery when the vegetative state is prolonged beyond a year, cannot ethically justify the cessation or interruption of minimal care for the patient, including nutrition and hydration. Death by starvation or dehydration is, in fact, the only possible outcome as a result of their withdrawal. In this sense it ends up becoming, if done knowingly and willingly, true and proper euthanasia by omission.

(Emphasis in original; by the Pope.)

11.       The other source in the USCCB Directive that is useful here is:  “Congregation for the Doctrine of the Faith, Commentary on ‘Responses to Certain Questions of the United States Conference of Catholic Bishops Concerning Artificial Nutrition and Hydration.’” Rome, from the Offices of the Congregation for the Doctrine of the Faith, August 1, 2007.  http://www.ewtn.com/library/CURIA/cdfaliment.HTM

12.      If this is what is appropriate for a patient in a vegetative state, how is it not also appropriate for a patient in any other state?  There is not found here any language qualifying the Pope’s statement.  Indeed, he said “I should like particularly to underline how the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act.”  (Bold emphasis added.)  Always would seem to mean, always.   Further, the administration of food and hydration is “…ordinary and proportionate, and as such morally obligatory…”  Even after a year, cessation is not appropriate.  To do so is “true and proper euthanasia by omission.”  Nowhere in this statement by the Pope does one find any support for an argument that withdrawal of AANH is appropriate based on the doctor’sconscience or state of the patient’s underlying health.

13      Footnote 1 from the Congregation for the Doctrine of the Faith document says:  “Terminology concerning the different phases and forms of the ‘vegetative state’ continues to be discussed, but this is not important for the moral judgement [sic] involved.”  Indeed.

14.       It has been argued by supporters that this bill is not euthanasia and is not even the beginning of euthanasia.  According to the Pope that most directly faced this issue and spoke to the withdrawal of food and hydration, euthanasia is exactly what can result from this bill, among other negative consequences.  According to the language allowing for the withdrawal of AANH on the bases of various nebulous, subjective, undefined situations, it can most certainly have that effect.  No far-fetched scenario is needed.

15.       What is interesting in all of this, is that certain supporters state the Texas Catholic Conference has drafted this.  But the NCBC says that they have drafted it with certain intentions and with certain provisions that the bill does not reflect.  The Texas Alliance for Life continues to refer to the endorsements/drafting by the TCC and/or the NCBC.  No one wants to claim paternity here.  It doesn’t appear that anyone can claim paternity.  That way afterwards no one can bear responsibility.  What we have here is a circular firing squad.  Catholic teaching is not represented by such chaos.