I disagree with Dr. Pojman and agree with your post [Dr. Elizabeth Wickham Comments on SB 303]. This is at the very least a first step toward POLST. Abortion did not happen all at once. It started slowly, first with birth control only for married persons. Then it continued from there. Such is – not will be – but IS the case for end-of-life issues. The pro-life movement needs to be aware of this and not hasten the slide down the slippery slope. This post is a warning about just that.
Indeed, in section 7(a-3) the current bill has this language that sounds very much like palliative treatment, which is the beginning of this slippery slope that Dr. Wickham addresses: “This section does not authorize withholding or withdrawing pain management medication, medical procedures considered necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.”
SB 303, specifically Section 7, gives many exceptions for withdrawing life-sustaining treatment (defined as including “artificially administered nutrition and hydration”) even for “nonterminal condition[s]” (which is what Terri Schiavo had) that are based on very subjective standards requiring judgments from the doctor about future events that he cannot possibly know. These subjective judgments are going to be prone to any bias toward prematurely ending a patient’s life that that doctor may have; e.g., “reasonable medical judgment”, “seriously exacerbate”, “result in irremediable physical pain or discomfort not outweighed by the benefit of the treatment”, etc. All of that is highly subjective and can be based, not on what the patient is experiencing, but what the doctor believes he or she is experiencing. The various ways in which this can be interpreted to hasten – unnecessarily – a patient’s death are legion. (As one who spends her days parsing language and interpreting the law, the loopholes here are just too great and too many. I also note that twice there is mention of legal immunity. One must always ask why special treatment is carved out for someone. Indeed, tort reform in Texas, esp. in the area of medical malpractice, has been nothing, if not, quite effective at reducing all lawsuits, including those that are meritorious. This extra layer of protection seems unnecessary and a bit of “overkill.”)
In the final analysis, there is no recourse for the family after the few administrative hurdles are crossed. Fourteen days is only four more than the 10 currently allowed for the family to find an alternative care facility. Why is the pro-life movement so opposed to a longer time – such as until an alternative facility is found?
This law is far from clear, despite what those in the Texas pro-life movement would have us believe. Just *any* revision is not what is called for here, it needs to be REAL revision that REALLY gives families and their loved ones protection.
We often see cases where a doctor has given a serious diagnosis with a dire prognosis to a pregnant woman and has advised her to abort. We in the pro-life movement laud and support that woman who rejects that advice regardless of the outcome of that child’s life. We proudly parade around pictures of that child who lives longer than expected or even a full life. We are quick to point out how often these doctors those diagnoses in utero turn out to have been completely wrong. Why is this same standard and logic NOT applied to end-of-life issues? In the beginning-of-life scenario, we defer – rightly – to the woman, esp. when she is erring on the side of life. It is philosophically inconsistent to do otherwise in the end-of-life scenario.
Ultimately, the family members of, or, if able, the patient himself, ought to be given final say. There can be no true “balance” between family and doctors – as supporters have claimed this bill provides – when there is disagreement between the health care provider and the family. We should err on the side of life.
Finally, I note that the language being used by supporters of this bill is far more like the “death with dignity” crowd than the pro-life movement. It is chilling. We saw this in another context last year where the pro-life movement began using language from the pro-abortion crowd, referring to contraception as healthcare. When you lose control of the language, you are well on your way to losing the battle and even the soul of the movement. When representatives of the Texas Catholic Conference are making statements like: “The Texas Catholic Conference advocates advance directives reform legislation that recognizes the dignity of a natural death. Human intervention that would deliberately cause, hasten, or unnecessarily prolong the patient’s death violates the dignity of the human person.” This is very close to just saying, “We favor death with dignity.” This is a concept we in the pro-life movement have heretofore rejected. I am sorry to see that change.
I respect a lot of what the pro-life movement has accomplished, including you personally, Dr. Pojman, as you and I have had several great chats over the years. I agree with the desire to make substantive positive change to the Futile Care Law, as you know. However, this is simply not it. The way this bill can be interpreted – and it is extremely foreseeable – will allow for less protection, not more, for patients.
Regardless of who has endorsed it, it is a very flawed bill and a missed opportunity (there are/were alternative bills). Appeals to authority notwithstanding (a logical fallacy anyway), it would be wiser to wait for better amendments, that are consistent with the pro-life philosophy, than further muddy the waters. We should not confuse our duties as pro-lifers with being lobbyists for doctors who may or may not be pro-life (remember, abortionists are doctors, too).
Kassi Dee Patrick Marks, JD