Texas Futile Care Law Scorned by State AG

by Wesley J. Smith

I have long believed that Texas’s futile care law is unconstitutional.

Specifically, the law permits a hospital bioethics committee to kick a patient out of wanted life-sustaining treatment that is working–e.g.., keeping the patient alive–based on the subjective values of doctors and the members of the hospital administration-appointed committee.

A lawsuit (Kelly v Houston Methodist Hospital) sues HMH for its attempt to force a now deceased patient out of the ICU. Now, Ken Paxton, the Texas Attorney General, argues that the law upon which the hospital’s decision was based is unconstitutional. From the AG’s amicus brief:

The Due Process Clause of the U.S. Constitution provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1.

A statute is unconstitutional under the Due Process Clause if the government is depriving an individual of a constitutionally protected interest and is using insufficient procedures to effectuate that deprivation.

Section 166.046 badly fails the due process test. The statute leads to the denial of a constitutionally protected interest—the right to life and the right to determine one’s medical treatment. And it does so through woefully insufficient procedures—Section 166.046 not only denies patients sufficient notice and opportunity to be heard, it does not even afford patients with a neutral arbiter to decide their fate.

Right. The decision makers are employees of, or volunteers for, the hospital. And since these cases often deals with situations that can cost the institution a lot of money, the decision makers have an institutional vested interest in the outcome.

Moreover, there is no right of appeal, or even, a written record kept upon which the bases for the decision can be determined in a court of law.

There was a time that, as a lawyer (forgive me), I would have found it shocking for an attorney general to advocate against state law.

No more. After California’s AG and governor refused to defend Proposition 8, that a made a ban on same sex marriage part of California’s Constitution–and to general applause–I have concluded that such legal niceties have become archaic.

So, good for Paxton. For the sake of vulnerable patients and to stop the futile care train in its tracks, let’s hope the court takes the AG’s friendly advice.

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