Friday, December 23, 2016

One Year Ago Today....Remembering Chris Dunn

Credit: Texas Right to Life

One year ago today, Chris Dunn died. I wrote then about how Chris did not get to see Christmas, having died without a diagnosis of his underlying condition, whatever it was, which meant it was not treated. Rather, the Hospital decided prior to Thanksgiving that year, that he was not worth treating or saving and sought to withdraw his life-sustaining care against his and his mother's wishes. Who can forget the video in that link where he prayed for his life? Chris and his mother bravely fought back. She continues the fight today for your sake and for mine. Ultimately, Chris was allowed to die without having his life-sustaining treatment withdrawn, but without a proper diagnosis and without any treatment for whatever his underlying condition was. This still deeply troubles me. It should trouble you as well. 

I have been anticipating this unfortunate anniversary for a few weeks now. Life and death issues are never far from the forefront of my mind. I've been thinking about my friends in the pro-life community who were on the front-lines this time a year ago and who have continued to fight on his behalf and others like him. I know this anniversary will forever be part of what all of us remember as we prepare for Christmas with our families. And, of course, it is all the more difficult for Chris's family. Please remember them as you celebrate. Please pray for God's comfort on them at this difficult time and for the repose of Chris's soul. 

As you know, it has always been our hope and prayer that Chris did not die under these circumstances in vain and that good might come of it. Chris's case was followed by people nationwide. His case brought to light how euthanasia is here - in Texas - and what that means for you and me. When people realize this, they are usually shocked and concerned. Many want to know how to act to stop this practice immediately. I have always seen it as part of my life's mission to bring education and awareness to this issue. Toward that goal, I have followed the lawsuit Chris filed prior to his death almost from the beginning. I have blogged about the underlying moral, legal, and ethical issues his case brought to light for many - including what it exposed as the core beliefs of a number of pro-TADA supporters who are members of alleged pro-life groups that advocate for legislation on this very issue that is neither pro-life nor pro-patient. I also poured over the pleadings, legal arguments, and facts in a sometimes lengthy posts to help you understand what this is all about, what the stakes are, and to set the record straight when it was muddled by those who think TADA is just fine and dandy. 

In the interim, I have kept up with the ongoing litigation he began which seeks to have the Texas Advance Directives Act declared unconstitutional. The status of the case is that there is a docket call on January 6, 2017, for trial which is set for January 9, 2017. However, the attorneys for Methodist have filed an unopposed Motion for Continuance. It appears that more time for discovery is needed, which is the fact finding phase in lawsuits. 

Meanwhile, the Court has yet to rule on the Motions I discussed in my last Update about the case, which argued for and against the Constitutionality of TADA. I wrote there about how Texas Attorney General Ken Paxton filed a brief opposing TADA, which is significant because normally the AG is charged with upholding the laws in the state and defending them. Our own AG believes this law to be unconstitutional and will not defend it in court. Clearly, this law should be overturned in Texas. The legislature should act accordingly in the coming months to do so, regardless of how the Court rules. 

The next session of the Texas Legislature will begin in January 2017. I pray that they take up this issue and that we get rid of TADA for good. I will do my part in that regard and I hope you will also. 


Credit: Texas Right to Life


Texas Right to Life has written a tribute to Chris and a call to action for everyone: 
Most Texans never learn about this law until they face the terrifying process of imposed death of a loved one by hospital committee. Chris was not the first victim, and he will not be the last. Texas Right to Life is the only statewide organization that provides support to the victims of this law, and we have assisted countless families racing against the clock under this draconian TADA. In this sense, Chris's story is not unique, sadly. What makes Chris's story different is the tremendous courage he and his mother showed in their desire to fight for other patients.
This is true. In November of this year I was asked to attend another "ethics committee" meeting where the hospital was seeking to withdraw life-sustaining care from a man against his family's wishes. The family had never heard of this law, were taken aback by what was happening to them, and could not believe that this was possible in America at all, let alone pro-life Texas. The family was unanimous and unified in their opposition to the withdrawal of life-sustaining treatment for their loved one. I met with the family and we attended the hearing together. 

The committee members could not have cared less what the family had to say. In fact, by the time we were allowed in, the meeting about the patient's condition had already occurred without us - even as we were standing in the waiting room waiting to be allowed in. When we were finally called in, the chairman let us know in no uncertain terms that they had already discussed the patient's condition without us. The family asked why the treating doctors who made the decision as to their loved one's "futility" were not in the meeting. We were told it was because it was their day off. (I hope you can see the lack of due process here, how the cards are stacked against a family, the farcical nature of this proceeding, and even the flippancy with which it is conducted.) 

The family was allowed to speak and expressed - with medical literature - why they believed their loved one should not be killed by withdrawal of his life-sustaining care. The two primary members of the committee dozed off repeatedly during the meeting, including the one who was chairing it. That's right. The two members of the committee most eager and vocal about withdrawing care to hasten a man's death against his family's wishes SLEPT during parts of the meeting while the family addressed them. THEY. SLEPT. 

When those two sleeping members were awake, they were overtly hostile and rude to the family members who could not have been more prepared, gracious, and composed under extraordinarily difficult circumstances. How did these two committee members respond - that is, when they were awake? They were hostile toward the family and actually raised their voices to those representing the family when fine points of the law were calmly presented to them. 

It was abundantly clear that anyone who would dare oppose the hospital's edict to kill a man prematurely by withdrawing his care enraged these members. Another one of the committee members, a doctor, asked what law we were even talking about. He was completely ignorant of the legal authority they were using even as he sat on the committee that would potentially render the final decision to kill a man. It was as if he was shocked that they even needed to have a law to allow them to make these determinations. I thought that said a lot.

I have never been in a meeting with more blatant hostility and anger than this one toward a family, which remained calm and composed. Besides the lack of civility and kindness exhibited by these committee members, I was also appalled by the aforementioned doctor who was totally ignorant of the law. He was utterly confused by references to law at all. I had to explain to him that there was a statute and that that was why they could even have this meeting in the first place. Only two of the 12 or so there uttered a single kind, calm word; the two already mentioned two were hostile when they were not sleeping; one was ignorant of the law and confused; and the others were dead silent, avoided interaction with anyone, avoided eye contact, and/or looked bored or disinterested, if not annoyed by being there at all. When the family finished their presentation, not a single member asked a question. 

The whole experience was completely stunning - and remember this was not my first rodeo. This was actually worse than the meeting I attended in 2015 where the neurologist advocating for a man's hastened death compared him to an animal in the forest, who, had it been still as long as the ill man had been, "he would have been eaten." This "doctor" said that to this man's family. I wrote about that experience here. In time, I may write more extensively about this latest "ethics committee" meeting I attended, but I will leave it here for now. 

Make no mistake about it, although we made some limited progress in reforming aspects of TADA in the last session, this is not a pro-life or pro-patient law. I don't see how it can be made into one. It completely lacks any semblance of due process and hospitals are still finding plenty of ways under the law to seek to kill patients against their will or their families' will by withdrawing life-sustaining care. 

This is not what we should be satisfied with in Texas. Take up Texas Right to Life's call and notify your state representatives and senators and let them know that enough is enough with TADA. It needs to be repealed. You can go to that link, type in your address, and find out who represents you and their contact information. It is not too early to set the tone for the next legislative session. 

Let's all do what we can to stand for life and protect the most vulnerable among us. One of these days, that vulnerable person could be you or your loved one. It is not pro-life to hasten death by the withdrawal of life-sustaining care against a patient or his family's wishes. Remember, we err, if we err at all, on the side of life. Always. 

Thanks for reading! 

I wish you a very Merry Christmas and Happy New Year!

Wednesday, November 2, 2016

San Antonio Texas Health Care in Crisis End of Life Conference November 19!

Instead of doing yet another update on the original post, I'm drafting this new post so that you have the most up-to-date information about this fabulous conference. You can purchase tickets here

Here is the latest: 



Please do try to attend if you are in the area or up for a road trip! It is certain to be worth your time. 

St. Jose Luis Sanchez del Rio, pray for us! 

Thanks for reading! 



Thursday, October 27, 2016

A Patron Saint for Our Cause: St. Jose Luis Sanchez del Rio

L: Blessed José Luis Sánchez del Río. R: Paulina Gálvez Ávila holds her daughter, Ximena Guadalupe, who was cured through Bl. José Luis' intercession. Photo via Facebook and Catholic News Agency's article linked herein.

One of the things I love best about Catholicism (I am a convert as of 2000) is the wealth of saints we have to call on for help. For my non-Catholic readers, let me hasten to add that there is no worship of saints. Rather, they are called upon to pray and intercede for us - exactly as I call upon you to pray for our causes and you call upon friends and family to pray for your intentions. It is just that simple. We call upon saints via prayer because they are deceased and in Heaven. There is no other way for us to call upon them.

So with that out of the way, let me tell you about a saint I just learned about and who my husband suggested would be a perfect patron saint for those of us who fight against euthanasia in all its manifestations (such as TADA): St. Jose Luis Sanchez del Rio

Blessed José Luis Sánchez del Río was brutally tortured and killed when he was 14 years old during the 1924-1928 religious persecution by Mexican President Plutarco Elías Calles. José Luis had enlisted in the ranks of the Cristeros, under the command of General Prudencio Mendoza. 
He was martyred by the Federal Army Feb. 10, 1928. According to the story, the soldiers cut off the soles of his feet and forced him to walk barefoot to his grave. Moments before he was killed, the boy shouted, “Viva Cristo Rey!” or “Long live Christ the King!” 
His character was one of the main protagonists in the 2013 film “For Greater Glory.”
You can read even more about him and his companions here

Why is he a patron for us? Because his intercession healed a little girl who doctors had determined to be "brain dead" and who had advised a little girl's parents to pull the plug on her to hasten her death. 

The miraculous cure of a baby with brain damage through the intercession of Mexican martyr Blessed José Luis Sánchez del Río has been approved by the Vatican, completing the final step for the teen’s path to sainthood. 
Pope Francis signed the decree Jan. 21, verifying the inexplicable recovery of a baby who doctors said had “no hope of survival” due to a myriad of health problems including brain damage caused by a stroke as a miracle attributed to Jose Luis Sanchez del Rio, a teenager who was martyred for his faith during the Cristero wars of the 1920s.
Ximena Guadalupe Magallón Gálvez was just a few weeks old in September 2008 when her parents took her to Sahuayo in the Mexican state of Michoacán where Bl. José was born. During the visit, Ximena began running a fever that her regular doctor was unable to treat, her mother Paulina Gálvez Ávila said in a post on the Facebook page dedicated to Bl. José. 
Concerned that the fever was a sign of something more serious like pneumonia, the doctor sent her to have X-rays at Santa María Hospital in Sahuayo where doctors ruled out that disease, but were still unable to treat the fever. Her parents took Ximena to get a second opinion from Dr. Rosendo Sánchez in Aguascalientes State who had the child readmitted to the hospital, saying that she might be suffering from atypical pneumonia. 
“We spent two months living that nightmare and (the doctors) didn’t know what was going on since she wasn’t responding to any treatments,” Mrs. Gálvez said. 
They sought another opinion from Dr. Adán Macías who diagnosed her with pneumococcus, a bacterial infection that can cause several different life-threatening illnesses including meningitis, severe pneumonia, and bloodstream infections. Ximena was transferred back to to Aguascalientes where Dr. Rosendo discovered that Ximena’s right lung was filled with fluid. She would need to immediately undergo an operation which could be very risky on such a young child. 
“Dr. Rosendo spoke with us and informed us that she would have to undergo a very delicate operation since she could bleed and die. We gave our consent and we told him to do whatever it takes  to save little Ximena and that we were putting her in God’s hands,” Mrs. Gálvez said. 
Concerned about their young child’s worsening health, the couple decided to have her baptized before the operation rather than waiting until she was older. 
The operation was successful, but upon examining lung tissue, doctors discovered that Ximena had been suffering from tuberculosis. 
“When they told us it was in fact tuberculosis and they brought her to us in the room, she looked strange, just staring off with an empty look in her eyes. We talked to her but she didn’t react. I told the doctor she looked bad, it wasn’t my baby because she was always smiling before,” the mother said. 
The baby underwent began intense treatment for tuberculosis, but her health took a turn for the worse when doctors informed the parents that baby Ximena had suffered from a stroke, causing 90 percent of her brain to be dead. 
Mrs. Gálvez asked to see her daughter. Before going into the room where the child was, one of the doctors warned her “that my baby was already in a vegetative state and that appropriate procedures should be initiated.”
“Dr. Rosendo arrived and crying I begged him to save my daughter. They put her into an induced coma and gave us 72 hours to see if she would live, since 90 percent of her brain was dead,” she said. 
During those three days, Ximena’s parents went to Mass everyday “to ask God and Joselito to intercede for my baby, that they would work a miracle” she said, using the affectionate nickname her family had for Bl. José Luis Sánchez del Río. 
Mrs. Gálvez said, “I asked them to let me be with her and hug her, then they disconnected her.”
“At that moment I put my baby in God’s hands and the intercession of Joselito and at that moment she opened her eyes and smiled.”
Ximena looked at the doctors “and she started laughing with them.”
The doctors “couldn’t explain what had happened. Because they had done everything medically possible and that’s when they said it’s a miracle.”
The doctors took Ximena to do a CT scan and an encephalogram. They were surprised to see that 80 percent of her brain had recovered. When they examined her the next day, her brain had become completely healthy again. 
Even after such an inexplicable recovery, doctors told Ximena’s parents that as a result of the temporary brain damage, she would never be able to eat or walk properly and that would most likely be blind and deaf and unable to speak due to the stroke. 
However, when her mother gave her a bottle of milk at the hospital, she drank eight ounces right away. The doctors were astonished. 
Contrary to all of the doctors predictions, Ximena completely recovered and is “perfectly well thanks to God and the intercession of Joselito,” Mrs. Gálvez said. 
“We give endless thanks to Almighty God for this miracle and to Blessed Martyr José Sánchez del Río for his ample intercession.”
(Emphasis mine.)

That article is from January of this year. Blessed Jose is now Saint Jose whose Feast Day is February 10. Yay! 

"Appropriate measures" is a code for withdrawing life-sustaining care. This miracle is stunning and gives us hope and a patron saint! 

But what I also find stunning is that the doctors here continued to insist that the baby was still going to be severely disabled even though the CT scan and encephalogram showed that she was completely recovered. This is consistent with my experience that doctors in these "futile care" cases are not only going to give you the worst case scenario from the beginning, but will continue to do so even where there is objective evidence of improvement. There is a mindset that death is the only reasonable solution and there is a bias against giving the body time to heal. Not all doctors are this way, but unfortunately, they are not the ones we deal with when a futile care case arises or we would not be in a futile care situation. 

As we pray for the Judge who will decide the important motions being decided in the Chris Dunn case, let us ask for St. Jose Luis Sanchez del Rio's pro-life intercession. 

Thanks for reading and praying! 



Chris Dunn Case Update

As I've written in the past, Chris Dunn may have passed away, but his case continues on as a challenge to the Constitutionality of the Texas Advance Directives Act ("TADA"), also referred to as Texas' "futile care law." I have hoped and prayed that his case would bring visibility to this little known, almost hidden, but appalling and often-used, law to the masses. More than that, his case may very well result in a ruling that this law is unconstitutional. It is the first such challenge to it. 

On that front, I have an important update for you. Tomorrow there is a hearing concerning the case still pending in Harris County. Chris' mother, Evelyn Kelly, has been substituted in as the plaintiff in the case, and is proceeding on her own behalf and on behalf of Chris' estate, so the case is now referred to as Kelly v. Houston Methodist Hospital.

The hearing is on Defendant's (the Hospital's) Motion to Dismiss (its second or third such motion) and Plaintiff's (Ms. Kelly's) Motion for Summary Judgment ("MSJ"), which I think is a bold move on their part. These are both case dispositive motions. I am only going to address Plaintiff's MSJ here because it is more interesting to me and more about TADA. A MSJ is most often filed by a Defendant seeking to have a case dismissed. The burden is higher on the movant in such a motion. 

A MSJ determines legal issues and whether there are any "genuine issues of material fact" which might need to go to a  fact-finder (either a judge or jury) to determine the case. A judge cannot determine ultimate matters of fact. He can only determine whether there is a genuine issue of material fact - basically finding that there are facts upon which reasonable minds might disagree. In that event, those issues would be submitted to a fact-finder. A judge may not make credibility determinations. All inferences must be made in favor of the non-movant. Questions of law, however, are determined by the judge. Most of the time, a Defendant files such a motion and claims the Plaintiff has no case. Once in a while, a Plaintiff will file such a motion, which is what has been done here.

As you might expect if you've read anything about the law and anything I or anyone else has ever written about the problems with TADA, the lack of due process is central to the challenge. Ms. Kelly is arguing that the law is unconstitutional because it lacks both procedural and substantive due process. These are all questions of law for the judge to decide. Let's go through her arguments one by one so you have a better understanding of what's at stake here. 

Plaintiff's MSJ begins with the argument that Texas Health & Safety Code Sec. 166.046 violates procedural due process.  "Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation, of life, liberty, or property." Plaintiff's MSJ at p. 2 citing County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007) (citing Carey v. Piphus, 435 U.S. 247, 249 (1978). (As always, you can pull the pleadings yourself on the Harris County website. The Cause No. is 2015-69681.)

Plaintiff notes that the state has delegated this decision-making authority to hospital systems in Texas, so Methodist was acting under color of state law. As a result, it is incumbent on the state to temper the risk of erroneous deprivation of rights. There is no protection given to patients under this law to protect them from a mistaken or unjustified deprivation of these rights. 

Plaintiff argues that "[b]efore life, liberty, or property is deprived, procedural due process requires a fair and impartial trial before a competent tribunal." Plaintiff's MSJ at 2. There are three protections required to achieve a fair and impartial trial:
  1. An opportunity to be heard;
  2. A reasonable opportunity to prepare for the hearing; and
  3. Reasonable notice of the claim or charge against an individual so as to advise him or her of the nature of the charge and relief sought.
Plaintiff's MSJ at 2 citing In re. R.M.T., 352 S.W.3d 12 (Tex. App.--Texarkana 2011); Pickett v. Texas Mutual Ins. Co., 239 S.W.3d 826 (Tex. App.--Austin 2007). 

All three protections must be met and then there must be an impartial tribunal. 

Now, it should be easy to any reasonably prudent person to see how this is an absolute requirement for any criminal or civil case. One can easily see why this these safeguards are necessary for basic fairness and justice. Now, contemplate the unfairness and injustice that results - and has resulted - because these safeguards are no where to be found in the Texas law that allows hospitals to kill a patient against their will. Contemplate that there are pro-life organizations and religious organizations that support his law and justify its usage. Contemplate that the Texas Medical Association supports this law - lobbied for it - and opposes any meaningful reform that would make it either more pro-life or comport with basic due process requirements. Contemplate that the TMA is the wealthiest lobbying group in Texas and has tremendous support in the legislature. Are you beginning to see the series of problems here? From morality to politics to basic civil rights to life and death. 

Continuing the analysis of Plaintiff's MSJ, they argue that there is no opportunity to be heard under the law, which is the first safeguard required for due process. The law does allow the patient or his surrogate to attend the hearing and they are entitled to his medical records, however, "the statute does not entitle the patient or surrogate decision-maker to address the committee, to offer evidence, or to utilize counsel." Plaintiff's MSJ at 3 citing Tex. Health & Safety Code Ann. Sec. 166.046(b)(4). (Emphasis mine.) Plaintiff's brief notes that whether a patient or surrogate can address the committee is left to the institution. There are no guarantees. 

Friends, I have attended such a hearing. Even as an attorney, I was mostly a passive bystander merely watching the rubber stamping of the decision to terminate a life early and against his family's wishes. I have written about that experience here. When I spoke recently at the Healthcare in Crisis conference, I noted that from my perspective, this law has more than one aspect of futility. There is also the futility of having legal counsel. We can't really do anything! This is directly because there is no due process in the statute. And, I'm here to tell you, that was not an accident or oversight, my friends. 

Plaintiff next addresses the lack of reasonable opportunity to prepare for a hearing in the law. Plaintiff's MSJ at 4. Plaintiff notes, "Due process of law ordinarily includes: (a) hearing before condemnation; (b) accordance of reasonable opportunity to prepare for the hearing. Mandate of reasonableness of opportunity may not be mere formal observance by judicial action." Id. citing Ex parte Davis, 344 S.W.2d 153, 157 (Tex. 1961) (citing Ex parte Hejda, 13 S.W.2d 57, 58 (Tex. Comm'n App. 1929). Plaintiff cites case law that states very clearly that notice must be sufficiently in advance of the proceedings so the preparations may be made. But in this statute, "a hospital is required to merely provide 48-hours' notice to a patient or their surrogate decision-maker." Id.(Emphasis mine.)

It should be patently obvious that one cannot respond adequately and sufficiently with such little notice - even were you afforded that opportunity (and you are not). Moreover, Ms. Kelly's brief notes that patients and their surrogates are not given any idea as to how to prepare for such an "ethics committee hearing." There are no guidelines, criteria, or any idea given as to how the committee makes its decisions. Therefore, the patient or surrogate has no idea how to respond. 

Third, Plaintiff argues that the patient or surrogate is not given reasonable notice of the claim against him. Id. at 5. Any person facing the deprivation of life, liberty, or property must be given notice of the claim against him so as to defend himself. Id. But TADA "does not require the patient to be apprised of why an ethics committee seeks to withdraw life-sustaining treatment under the statute. Instead, Section 166.046 lacks any criteria or benchmarks for which patients are susceptible to the Section 166.046 process, and thus does not provide a patient with such information prior to a deprivation." Id. (Emphasis mine.)

My experience is that patients or their surrogate are given a notice like Chris Dunn and Ms. Kelly were and that's that. It's boilerplate, non-specific language. It does not tell you why this withdrawal of life-sustaining care is no longer appropriate in their opinion. In this post, I provided the full letter Chris was given on November 13, 2015. It is pretty standard. How can you respond to that even were you given an opportunity to be heard and present evidence? You have no idea what that means, you have only 48 hours. If the person were a criminal rather than a patient, there would be no shortage of people clamoring for reform and change. Why is the ill person treated as lesser than a criminal? I have never received an answer to that question from any TADA supporter. That's telling. 

Ms. Kelly then addresses the lack of impartial tribunal. Plaintiff's MSJ at 5-6. The argument is that the "ethics committee" is made up of members of the hospital staff, employed by the treating hospital, the very entity that wants to withdraw care. This care can be very expensive. The conflict of interest in inherent and obvious. As Plaintiff notes, "The objectivity and impartiality essential to due process are nonexistent in such a hearing. Section 166.046 provides no mechanism whereby guaranteeing a patient's case will be heard and decided by an impartial tribunal, and as such, fails to comport with adequate due process requirements." Id. at 6. (Emphasis mine.) 

Next, Ms. Kelly's MSJ addresses the violation of substantive due process by Sec. 166.046. "Therefore, a substantive due process violation occurs when the government deprives individuals of constitutionally protected rights by an arbitrary use of its power." Id. at 6-7 citing Byers v. Patterson, 219 S.W.3d 514, 525 (Tex. App.--Tyler 2007, no pet.) (citing Simi Inv. Co. v. Harris Co., 236 F.3d 240, 249 (5th Cir. 2000). 

In support of this argument, Ms. Kelly argues that a competent individual has a substantive privacy right to make his own medical decisions. Id. at 7. The case of Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 269 (1990) is cited for its proposition that "It cannot be disputed that the Due Process Clause protests an interest in life." Plaintiff notes that "This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment." Id. The Cruzan Court "noted that the Constitution requires that the State not allow anyone 'but the patient' to make decisions regarding the cessation of life-sustaining treatment." Id. citing Cruzan at 286. The Supreme Court also held that the state could require a "clear and convincing evidence" standard to prove the patient's wishes. Id. citing Cruzan at 280. 

Now, just be be clear - the Supreme Court was holding that a state that would allow a patient to decide to withdraw her own life-sustaining treatment could require that it be proved by clear and convincing evidence. Here, in Texas, there is no evidentiary standard required to be met by the hospital deciding to withdraw care against a patient's or surrogate's wishes. Rather, as Plaintiff's brief points out, "An attending physician and hospital ethics committee are given complete autonomy in rendering a decision that further medical treatment is 'inappropriate' for a person with an irreversible or terminal condition. This is an alarming delegation of power by the state law. A final decision rendered behind closed doors, without an opportunity to challenge the evidence or present testimony or contrary evidence is a far cry from the due process intended to protect the first liberty mentioned in Article I, Section 19 of the Texas Constitution and that of the Fourteenth Amendment." Id. at 7. (Emphasis mine.)

Continuing Plaintiff's argument, Ms. Kelly argues that "The State of Texas does not own the decision, and thus lacks the authority, to end a patient's life by taking away life-sustaining treatment. As such, the State of Texas does not have any authority to delegate such a decision to any actor, private or public." Id. at 8. This is an excellent point! You cannot delegate what you do not have. And yet, that is exactly what has been done here.

Next, Ms. Kelly argues that the patient's situation is different from a convicted felon facing the death penalty in that through Sec. 166.046, "the State of Texas [TEXAS!] has created a scheme whereby patients in Texas hospitals have their life extinguished, being found guilty of nothing except that of being ill. The State of Texas simply does not have the authority to sentence ill people to premature death." Id. (Emphasis mine.)

Then Ms. Kelly finishes this section by stating that hospitals are acting under color of state law when they act under Sec. 166.046. Id. at 8. The argument is that hospitals acting under this statute are exercising power they would not otherwise have but for this law and that they are exercising "statutory authority evocative of a government function" in that they give only two days' notice, held a hearing regarding terminating Mr. Dunn's life-sustaining treatment, made a determination that his request to continue life-sustaining treatment would be denied, determined that his life-sustaining treatment would be removed, and gave written notice that his life-sustaining treatment would be removed on or about November 24, 2015, which it was allowed to do under TADA. Id. at 8-9. A number of examples are then given where private entities have been held to act under color of state law for performing traditionally government functions or heavily regulated government functions. Since the hospital was acting under color of state law, the first element to a Section 1983 claim (a claim for deprivation of civil rights) is met.

Finally, Ms. Kelly addresses the fact that the death of Chris Dunn does not render the case moot. Id. at 11-12. Normally, cases cannot be heard if they are moot. Courts are not generally in the business of rendering "advisory" or "hypothetical" opinions. Usually, the controversy has to be ongoing. However, exceptions have been made federally (ironically, this is one reason the USSC found to justify imposing Roe v. Wade on the nation) and in Texas. 

Ms. Kelly noted: "The Texas Supreme Court has recognized two exceptions to the mootness doctrine:   (1) the capability of repetition yet evading review exception, and (2) the collateral consequences exception." Id. at 11 citing State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980). The first exception is what it sounds like, cases will be considered where they are repeated but the act being challenged is of such a short duration that it ends before a court can review the matter, at which time it would be moot. That is the situation here and Plaintiff's MSJ cites case law holding that in some cases, even the death of the affected individual does not moot the challenge. Ms. Kelly notes that Sec. 166.046 is designed for repetition. It is utilized repeatedly. Also, Ms. Kelly notes that this statute is designed to evade review. Even in a case where a lawsuit might be filed, 20 days are given to the responding party, but such time life-sustaining treatment would be withdrawn. Of course, not mentioned here, is the fact that there is no statutory provision allowing for judicial review of the ethics committee's decision. This case is unique because it is challenging the constitutionality of the law as a whole.

This was an excellent brief. Of course, the Defendant/Hospital filed a response that consists of these points:
  1. The constitutionality of Sec. 166.046 is an issue more appropriately addressed by the Texas legislature; 
  2. They are not a state actor; and
  3.  This cause of action is moot because the controversy is not capable of repetition.
I'm only going to briefly address them. You can pull the pleading yourself at the link I provided above.

First, the Hospital claims that it takes no position on the constitutionality of the statute as this is, according to it, an issue more appropriately determined by the Legislature. That is an interesting argument. Courts actually determine the Constitutionality of statutes, not Legislatures. It is also interesting that the Hospital - though willing to utilize this draconian statute - chooses not to defend it. Also telling. Finally, given the TMA and the Texas Hospital Association's lobbying arms, I'm sure that Defendant would prefer that this matter remain in the Legislature. But it is in Court now and I pray that the Constitution is upheld.

Second, with regard to the Hospital's state actor status, it reiterates that it is not taking a position on the Constitutionality of the statute. It claims that it cannot be sued in the capacity Plaintiff has sued them.

Third, the mootness issue is an interesting response. They argue that since Chris Dunn is now deceased, the issues raised are moot because the act complained of is not capable of being repeated - on Chris Dunn. Do you follow that? How convenient. But that is not what the law holds.

Again, you can read more of what they write buy pulling their pleading.

What has transpired most recently is that the State of Texas has decided NOT to litigate on behalf of the law, but agrees that it is unconstitutional. Wesley J. Smith, a stalwart opponent of TADA, has also written about the case and has praised Texas' Attorney General, Ken Paxton, for stepping in and filing what is called an amicus curiae brief challenging the Constitutionality of it.  

An amicus curiae brief is not a brief by one of the parties in the case (in this case, either Ms. Kelly or Methodist Hospital). Rather it is often referred to as "a friend of the court brief" and the person filing it petitions the court to file a brief in the action because he has a strong interest in the subject matter of the lawsuit. I'll let the AG's brief speak for itself as to why it has an interest in this:

The State of Texas, acting through its Attorney General, has a solemn responsibility to defend the constitutional rights of Texas citizens, even from state statutes. Moreover, the State of Texas operates numerous public hospitals and health care facilities, and accordingly has a vested interest in determining the constitutionality of Section 166.046 of the Texas Health and Safety Code.
The AG argues many of the same points that Plaintiff Ms. Kelly does. But the importance here is not what was argued, but that the AG has decided not to defend this law. I am pleased to see this. The AG's office has not always taken the correct approach with regard to TADA. When Governor Abbott was AG and running for governor, he refused to intervene and act to uphold the provision of TADA that would have prevented its usage on a pregnant woman, Marlyse Munoz. The one redeeming provision of TADA was not supported by the AG at the time and was, effectively, judicially nullified. Ms. Munoz and her unborn baby, who was just weeks shy of viability, were killed against the law. (In that case, Mr. Munoz was petitioning the court to withdraw care from his wife and unborn child to hasten her death and ensure the child's in violation of the law.)

Important things with regard to the future of TADA are going to be heard tomorrow in court. Please pray for a pro-life outcome. Judges do not always rule on the hearing day, so it may be some time before we know. I will keep you updated.

In the meantime, please pray.

And, thanks for reading! 




Wednesday, October 12, 2016

Save the Date: 1st Annual Texas Right to Life NORTH Texas Celebration of Life on Friday, November 11





I am so excited! Texas Right to Life has just announced its 1st Annual NORTH Texas Celebration of Life. As you probably know, Texas Right to Life is based out of Houston. Every year I hear about and see pictures of their excellent Celebration of Life event. Logistics for me being what they are, I have never been able to attend. Now, however, those of us all the way up here are blessed with our own event. You can purchase your tickets here

I have written often about how much I admire Texas Right to Life. I write this as one who has had extensive interactions with every major pro-life group in the state in my 17 years of pro-life activism. Many of these groups do good work when it comes to fighting abortion, sidewalk counseling, helping pregnant mothers choose life, providing support for pregnant mothers and their babies, praying faithfully, etc. However, there is only one group in Texas that understands the other end of the pro-life spectrum that is just as important as abortion - and that is Texas Right to Life. 

The denial of care for ill patients in Texas, the withdrawal of life-sustaining treatment against patients' or their families' wishes, the law in Texas that makes this possible, the creeping euthanasia in Texas and elsewhere are all issues that deeply affect every single one of us. Very few of us will avoid a hospital for the entirety of our lives. Thus, we are more personally affected by this issue than even abortion, as awful as it is.

But this aspect of the pro-life movement is either much neglected, or even worse, hijacked by those who either do not understand the issue or are actually (for whatever reason), working against pro-life efforts to stem the tide of euthanasia (involuntary as well as voluntary). I have dedicated this blog almost entirely to these matters. When all is said and done, Texas Right to Life is your only real and reliable pro-life ally when it comes to saving lives of the ill, elderly, and vulnerable born persons who are also at risk in the current climate. 

Recall that Texas Right to Life is the ONLY pro-life group in Texas that helps families navigate the process that allows hospitals to withdraw care against your will (even if you have an advanced directive). I described in great detail Texas Right to Life's efforts on behalf of Chris Dunn here and also explained why it is the go-to organization for these matters (see esp. Sections III. and IV). It is the only pro-life group in Texas that consistently works to reverse this law or at least make it more patient-centered. 

This is a most worthy group to support for these and other reasons. Spend some time on their website or Facebook page and learn more about them. 

Then buy your tickets and join me in attending this wonderful event and let's CELEBRATE LIFE!

Thanks for reading! 



UPDATED AGAIN: Save the Date: Healthcare in Crisis Conference in San Antonio Saturday, November 19

UPDATE 2: I have been sent a different link for the purchase of tickets. I do so hope you can go if you are in the area. Here is even more information about it in the email that the Texas Leadership Coalition sent out last night. That is a wonderful group and I highly recommend subscribing to their newsletter even if you are not in San Antonio. It covers topics relevant to you regardless of where you are geographically.

UPDATE: Here is a place to purchase tickets for this event.

ORIGINAL POST:

I mentioned in my last two posts about the Healthcare in Crisis Conference in Allen, that there would be one in San Antonio. Information about it is now available here, but online registration is not yet open. I will post an update when it is, but please save the date if you are in that area or can travel to attend.


The Conference in Allen went well and our feedback was entirely positive. I would expect nothing less from this Conference. 

The San Antonio Conference is sponsored by the Texas Leadership Coalition, which is headed by Phil Sevilla, and the Knights of Columbus. Phil is another among the salt of the earth people I mentioned meeting when I got involved in this particular pro-life battle in 2013. He is a faithful, thoughtful person who works hard to bring light and truth into this world. 

This Conference will address some different aspects of this pro-life battle raging within healthcare and end-of-life issues. You should pay special attention to Bishop Gracida's presentation about "Brain Death" and Organ Transplantation. "What is the connection?" you may ask. PLENTY. Bishop has written about this extensively on his blog.

I am also very excited to see a presentation on the gift of suffering. The very definition of euthanasia is to end suffering by killing the person. But that is immoral and you need to understand why and have a deeper understanding of this topic. I have long wanted to do a series of posts about redemptive suffering, but have yet to have time to study in the depth I need to to write about it. Nevertheless, I am convinced that until people understand that suffering has a purpose - not for it's own sake - but for the sake of one's soul - that the war against creeping euthanasia and doctor assisted suicide will be difficult, if not impossible, to win. Even in the Catholic Church we hear very few talking about this although it remains our teaching and that of the Bible

Texas Right to Life will again be represented in this Conference and they are always full of timely information about what is going on right now in Texas hospitals. They are the only statewide pro-life organization to help patients and families navigate the deeply flawed Texas Advance Directives Act which gives hospitals the right to withdraw care against your or your family's wishes whether you have an advanced directive or not. So many are unaware of this. But you need to be. 

Julie Grimstad of the Pro-Life Healthcare Alliance will be speaking and she has a great deal of experience helping people all over the nation who would be euthanized were it not for her advocacy. 

As I have written before, these are not hypothetical, academic discussions. Involuntary euthanasia is happening in this nation and in this state right now, but this is only the beginning. A more aggressive agenda is afoot and we see it manifesting faster in Europe. This will not stop without you being aware, informed, and involved when there are opportunities to be. Those opportunities will likely be coming up in 2015 when the Texas legislature meets again. Stay tuned....but in the meantime keep reading, praying, and supporting truly pro-life representatives.

Thanks for reading!

Tuesday, September 20, 2016

Don't Forget about the Healthcare in Crisis Conference in Allen THIS Weekend




Just a quick post to remind you to come to the Healthcare in Crisis Conference I discussed in my last post. I think it will be well worth your time to attend if you are in the area. I will be on a panel with Elizabeth Graham of Texas Right to Life. 

There are only four days left to sign up. You can find additional details here with samples from some of the speakers. This is an incredibly timely conference which will address topics of significance well beyond Texas. Let me give you a very broad overview of things including some developments in this area just this week. 

As you know, Texas has set a very bad example on end of life/denial of care issues but other states are looking to do likewise. Virginia is looking to pass a Futile Care law. Oregon already has legal assisted suicide as the Brittany Maynard case made very public. 

This push will not end with voluntary euthanasia, even were that morally licit and it most certainly is NOT.* As we already see in Texas, doctors and hospitals (whose "ethics boards" approve of a doctor's recommendation to withdraw care to patients he deems futile) have the right to take your life against your will. This blog has been almost entirely dedicated to this issue. Virginia looks to have some wanting the same sort of law. While this law is supposed to be limited (as if that makes it okay), it is in no way moral, ethical, or Constitutional. Nor is it all that limited, despite what supporters of Texas' law contend.

Let us be aware of what is going on, work hard to prevent its spread, and try to get Texas on solid pro-life footing in this regard. If you've read my posts, you know how difficult this task is before us. You know how even "pro-life" organizations and religious leaders have become - at best - "confused" about what is actually the morally correct position on this issue. You have seen that certain lobbyists have anything but the welfare of patients and patients' rights in mind with their goals and who they fund in elections. You have seen the disdain some have for those who work for the right to life of all people whether ill, elderly, or special needs. You have seen how those deemed unworthy of having the opportunity to continue life until natural death are at risk.

But you should also understand that the euthanasia push is not something unique to Texas or the US. Indeed, we might be considered "behind" by the powers pushing it. There are tremendous efforts worldwide to promote and advance euthanasia, particularly in Europe. Belgium has the dubious distinction of being on the forefront of this appalling advancement of the culture of death and has now begun euthanizing children!

Moreover, we are on an incredibly steep, slippery slope that - like abortion and all other social ills - is veering further into depravity. We are now seeing a call to starve dementia patients to death. As heartbreaking and difficult as this diagnosis is for the patient and his caregivers, that is no death with dignity. Rather, it is excruciatingly painful and inhumane. 

But that is part of the process here; there is a method to this madness. Can't you see it? As Wesley Smith writes: "Yes, of course, the point is to open the door [to] lethally injecting dementia patients." And then who else? Whoever those in power think deserves a "dignified death" by injection, but no right to life. 

My friends, this is not going to end well for any of us. This is not progress or sophistication. This is barbarism and profoundly immoral. A person does not cease to be human and deserving of life and care because they suffer from dementia or a terminal illness or even depression which is a "valid" basis for euthanasia in Belgium. Yet, this is happening and the call for its spread is never-ending. No one is immune to the effects of this practice. Everyone has a responsibility to stem the tide and protect the most vulnerable. 

I hope you can make it to the conference and learn about what is going on and what you can do. 

Thanks for reading! See you Saturday!

*In time, I hope to begin writing about why euthanasia - even by choice - is immoral, why it still poses a risk to those who would not choose it by simply being legal, and why, for that reason alone, it should always remain illegal.