On the Record & in Their Own Words: The Texas Catholic Conference of Bishops, et al, Support TADA

In the wake of the Texas Catholic Conference of Bishops' ("TCCB" or "TCC") "Parish Advisory" (see this post) seeking to ban Texas Right to Life ("TxRTL") from parish properties statewide, embargoing any information coming from them in order to keep it from Catholics, and making all sorts of allegations against it for which there factual support is still entirely lacking (and I'm not the only one who has been asking for it), various questions have arisen. One is where the TCCB stands on certain matters, including the Texas Advance Directives Act ("TADA") to which this blog has been almost entirely dedicated. The Parish Advisory mentions in Issue 2 "Conflicts on end-of-life reform" but that is code for TADA. I have been asked how I can claim that the TCC supports TADA, and, therefore, involuntary passive euthanasia of patients. What evidence do I have? Well, first, I have covered it on this blog for four years (but it has been going on much longer than that) and below I catalog and summarize prior posts on all of these matters for you. Second, I'm presenting here the Amici Curiae brief that the TCCB and other organizations filed supporting TADA in a lawsuit brought to challenge its application to a patient and its constitutionality. In their own words, they explain their support of TADA and all it stands for. 

Let me begin with a note about terminology. I've discussed this before but let me recap. Why do I refer to TADA as "involuntary passive euthanasia"? First, TADA allows a hospital to withdraw your life-sustaining care against your will; it does not require anyone to consider your thoughts on the matter at all. Thus, if it is used against you against your will, you are subjected to something that is involuntary. Second, "passive euthanasia" is distinguished from "active euthanasia." "Passive euthanasia"is death brought about by the denial of something without which you will die. It can be air (ventilators), nutrition, hydration, etc. "Active euthanasia," on the other hand, is that which Jack Kevorkian promoted - a shot or pills, etc. are administered - to directly and quickly bring about your death. TADA allows for passive, but not active euthanasia. But allowing the one sets up a slippery slope. There have already been calls to allow active euthanasia in Texas. 

One other term should be addressed as well. This dispute has been characterized as being about "end-of-life" reform or legislation. Understand that in some cases the patient is not at the end of their lives. Often the issue is a refusal to treat a patient with a serious illness, a need for medical intervention to sustain their lives (but who might live a long time if treatment is not denied), a person with a disability, or even someone who suffered a serious traumatic injury and just needs more time to heal, and who might make a full recovery. It is simpler and maybe "cleaner" for some to characterize such people as always being at death's door; a person who someone is trying to keep alive at all costs in some hopeless, cruel endeavor meant to only cause suffering so that the clueless, distraught family doesn't have to "face reality." That paints a narrative where euthanasia seems the humane thing (even if it were moral). 

The truth is, there is a great deal of discrimination here against those with disabilities or medical needs that are not otherwise "terminal." The situation is not so unlike the exception in Texas allowing abortion of unborn babies diagnosed with "fetal abnormalities" at all points in the pregnancy even after the important 20 week gestational age when science proves that babies can feel pain. Certain Republicans (not endorsed by TxRTL, of course) refused to even consider an amendment to a bill that would have closed this loophole and prohibited all abortions after 20 weeks. Babies diagnosed with "fetal abnormalities" do not have the same right to life in Texas even among certain "pro-life" Republicans. There is great discrimination in existence here against those with disabilities from womb to tomb including among those who call themselves pro-life. Think about that. 

Concerning the matter at hand, I have publicly stated that the TCCB supports TADA and I have received some flack and pushback from people, who I am sure are well-meaning, but refuse to believe that their Bishops could err (clericalism is an error, by the way) and have demanded proof that the TCCB supports involuntary passive euthanasia and/or TADA. Although this proof exists in the statements made in the Parish Advisory itself coupled with the language of TADA, some are not convinced. 

I have also directed people here, to this blog, which has covered this issue for nearly four years - in great substantive detail. You can look at any number of the following posts to learn more about the law, the morality, the victims, the organizations involved, the conflicts (between victims and the law; between the law and morality; between organizations; between the TCCB and Church teaching; there is a lot of conflict here; but just as we can't split the baby that one might seek to abort, we can't half way kill the ill patient). You can read:

• this post (where I lay out the issues with TADA and the TCCB for the first time);  
• this post (where I discuss the issues in more detail); 
• this post (where I take issue with a PolitiFact hit piece on the issue and discuss the really unfortunate, macabre language the TCCB uses in the context of TADA (and has continued to use, more on that below)); 
• this post (where some of the TCCB's thinking is exampled in more detail); 
• this post (where I describe one of my experiences attending a hospital ethics committee hearing where TADA was invoked in order to withdraw a patient's life-sustaining care in order to hasten his death); 
• this post (where a proposed reform to TADA was amended so that it could be supported as an incremental improvement to the law; NOTE: one of the TCCB's primary complaints (Issue 1) is that TxRTL opposes incrementalism; this is just one piece of evidence demonstrating the falsity of the allegations against them); 
• this post (where we see TADA being used against a patient, Chris Dunn); 
• this post (the date of Chris Dunn's death; the hospital never diagnosed or treated him for his underlying condition while in the hospital; he did not die because of the withdrawal of his care, but only because a lawsuit was filed to prevent that, and the hospital relented);  
• this post (where I analyze the lawsuit filed by Dunn prior to his death (and then continued by his Estate and mother) to challenge the constitutionality of the law as it provides absolutely no due process for a patient; and the difference between a natural and hastened death); 
• this post (where I provide the actual court documents in the Dunn case and show the hospital sought to be his guardian so as to make his life-ending decisions for him; present a pro-life out-of-state doctor's published article discussing TADA after Dunn's death; TAL's response to that article and public endorsement of euthanasia; the doctor's reply; TAL's and the TCCB's close association (as further proven by the Parish Advisory); and explain the "feud" between TAL and TxRTL); 
• this post (where I provide an update of the Dunn case where even the State of Texas says that TADA is unconstitutional and the Attorney General - who is charged with defending the State's laws - will not); or 
• this post (where I describe yet another experience I had while attending a hospital medical ethics committee hearing seeking to withdraw a patient's life-sustaining care in order to hasten his death and note, among other things, that two of the members SLEPT during the proceedings). 

In addition to that above: the TCCB, TAL, Texans for Life Coalition ("TLC") and others filed an Amici Curiae brief in the Chris Dunn case when it was pending at the trial court level in support of TADA. This is a "friend of the court" brief which is filed by those who are not technically parties to the case who want to jump in, put in their two cents, and claim an interest in the outcome. It is rather unusual for that to be done in a case still at the trial court level as this is normally done at the appellate court level. (FULL DISCLOSURE: The Dunn case is on appeal and I am one of the attorneys who helped write the appellate brief. Therefore, I will not discuss the appeal itself further at this point.)

NOTE: The Parish Advisory stated: "Texas Right to Life is not to be confused with Texas Alliance for Life or Texans for Life Coalition, which are separate organizations and remain consistent with the bishops' positions." (Emphasis added.) Thus, TAL and TLC were given a robust, unqualified, absolute endorsement in the Parish Advisory. That will become more significant as we delve deeper into the substance. 

Here is the file-stamped cover page for their brief:

Then, significantly for the purpose of this blog, I want you to see the stated "Interest of Amici Curiae" - in other words, the organizations' explanations to the Court for why they believe they have an interest in this litigation and why the court should listen to what they have to say. I'll present each of the four pages and then comment below.

So there you have it. The TCCB, TAL, and TLC have each come out in support of TADA in a brief opposing the constitutional challenge to the law which gives you - the patient - no due process rights. None whatsoever. 

TLC goes further and says you have no Constitutional right to medical care at all! So if medical care is required to sustain your life, you have no Constitutional right to life by this logic. Good to know. Also, and this is relevant, the executive director of TLC, Kyleen Wright gave this testimony in support of using aborted baby tissue for research so long as the women know what will happen to their babies' bodies.

NOTE: The Parish Advisory stated: "Texas Right to Life is not to be confused with Texas Alliance for Life or Texans for Life Coalition, which are separate organizations and remain consistent with the bishops' positions." (Emphasis added.) Arguably then, these are the positions of the TCCB. There were no qualifications given to the absolute TCCB endorsement of these organizations and what they stand for. The Catholic Church does not support using aborted baby remains for medical research. Apparently, the TCCB does. Do you see why the TCCB, and Bishop Olson in particular, are in need of both correction and to meet with someone else on these matters?

It simply cannot be said that a patient's rights are "balanced" in a law that provides them with no rights at all. Read the law. Google what is required by due process. Then read the law again. As I have discussed in various posts above it is patently false to claim any sort of balance between patient and doctor rights, due process protection, constitutionality, or morality under Catholic Church doctrine. Balance is not just lacking, it is non-existent. 

The TCCB is actively opposing the death penalty in Texas. While I make no statement on the morality of that, it is important to note here the irony: people on death row received full due process rights - both substantive and procedural - that the ill patient in the hospital is entirely denied by the law that the TCCB claims is "indispensable for ensuring dignity at the end of life." The convicted felon has a right to appeal his conviction, any denial of due process rights, etc. The TCCB supports the denial of due process rights for the ill patient but cries out to the Heavens for the convicted criminal who received those very rights TADA and the TCCB (and TAL and TLC) deny to the ill. How does this make sense? 

Further, I have written before about the TCCB's usage of the language "prolonging death," how unfortunate, even nonsensical it is, and how it shows the true philosophy here. Not only does the TCCB use that language, but so do those promoting TADA in the PolitiFact article, which I discussed here. I said there, referring to my prior post on Bishop Gracida's blog, the following:

There is so much wrong with this letter [from the TCCB in 2014], but a few things occurred to me immediately.  It refers to “unnecessarily prolong[ing] a patient’s death…” as a reason to withdraw care.  Such is an awkwardly worded statement that literally makes no sense.  The definition of prolong is “to extend the duration of,” but we cannot extend the duration of death.  Once you die it’s done; this earthly life is over.  It seems to me that what they are saying is that they don’t want to unnecessarily prolong a patient’s life.

The whole letter, like everything else the TCC has done on this issue, is focused on how soon we can withdraw care so one can die.  It uses the term “dignity” again  veering very closely to arguing for “death with dignity.”  This sickens me to my core.  From the beginning of the HB 1444/SB 303 battle, there were references to “dignity” and I noted then that:

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.

The TCCB has not (to my knowledge) wavered in its opposition to anything that might keep you here longer if that's what you wish. Your "death with dignity" should not be "prolonged" - whether you like it or not. Your life? Not so much concerned about prolonging that - given this consistent choice of language - but we must get you to that death ASAP - death must not be prolonged. (This also really affects the individual's preparation for dying, facing judgment, and hopefully meeting God. There is a whole spiritual process that needs time to unfold here that should not be truncated. Perhaps in time I will write more about this. It has been the topic of discussion between myself and certain ethicists and religious leaders. It should not be dismissed, but is beyond the scope of this particular post.) 

Also, and this cannot be stated enough, I have never gone into a hospital ethics committee hearing and had doctors complain that their consciences were violated by continuing life-sustaining treatment, nor has anyone else I've ever talked to that has attended one. Doctors and advocates of the institution of involuntary passive euthanasia for a patient have, however, stated (in front of the family) if the patient were in a forest and had been still that long, he would have been eaten. I wrote about this experience here and used it as part of my testimony before a legislative committee hearing on TADA. Doctors have said that this person was "gone" and would never be the same; that the person the family knew had left. These are quality of life determinations made by people utterly unqualified to do so. No one is qualified to make that decision for you but you or your chosen surrogate. 

Significantly, in the wake of Chris Dunn's death, TAL publicly came out in favor of euthanasia and argued that removing life-sustaining care to alleviate "suffering" was "morally legitimate" This is the very definition of euthanasia. Suffering is not the same as a disproportionate burden or harm from the expected outcome of a medical procedure or intervention. I suffer when I have a wisdom tooth pulled, but that procedure is not disproportionate to my needs. See CCC 2278 below, where this is discussed in more detail, as well as who should make that determination. (The Catholic Church also teaches about "redemptive suffering" so this is all the more reason why the decision about how much suffering one wishes to endure must be left to the patient. Again, that is a topic for another post, but not a throw away consideration in this context.)

NOTE AGAIN: The Parish Advisory stated: "Texas Right to Life is not to be confused with Texas Alliance for Life or Texans for Life Coalition, which are separate organizations and remain consistent with the bishops' positions." (Emphasis added.) Arguably then, this is the position of the TCCB. Taking action to alleviate "suffering" (as opposed to the reasons set forth in CCC 2278) is euthanasia which is not supported by the Catholic Church. Doing this against a patient's will is also not supported by the Church. Yet, this this is the position of TAL and TAL's positions, according to this most recent Parish Advisory of the TCCB, are "consistent with the bishops' positions." The TCCB - thankfully - does not go so far as to say these are consistent the the Church's position. This is a distinction with an important difference as this situation makes painfully clear.

Incidentally, there was no factual evidence that Dunn was suffering from his life-sustaining care, even were that a justification to pull the plug on him early against his will. Moreover, he prayed for his life as evidenced by the video of him. Moreover, this is all beside the point because a hospital should not be making the decision for you as to whether your death is hastened by the withdrawal of life-sustaining care or not. That is yours and yours alone. And, should you argue that life-sustaining care is not natural, you should know that the hospital in Chris Dunn's case argued that as they did not withdraw his life-sutaining care, his death was "natural." 

As I have argued before, if a doctor's conscience is pricked by allowing you to continue your life-sustaining care as your underlying disease, illness, or infirmity consumes you and leads you to a natural death, then why can he not step aside and allow another doctor to take over? Why must the fulfillment of his conscience lead to your hastened death? Your only option under TADA is to, in a maximum of 10 days, find a new facility (which is very difficult and usually impossible to do once the current hospital has made a futility finding) or the hospital can then withdraw your life-sustaining care against your will and hasten your death. You are completely at their mercy. 

From the Catholic Church's standpoint, there is no moral justification for this. A supporter of the TCC - who herself had never read TADA before last night - sent me a reference to the Catechism of the Catholic Church paragraph 2278 as support for TADA. It does not support TADA, the TCC, TAL, or anyone else who promotes involuntary passive euthanasia. Let's take a look:

It says that "[t]he decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected." (Emphasis added.) That in no way supports TADA, involuntary passive euthanasia, or its lack of due process rights. 

I want to make one more observation. In Issue 3, "Texas Right to Life's voter guide," the TCCB's Parish Advisory states: "Unfortunately, a number of legislators who have consistently voted for pro-life and end of life legislation have been opposed by Texas Right to Life." Ignoring that the premise of this statement is incorrect - let's look at that language more closely. It does not state that the legislators have voted for pro-life (or even pro-patient) end of life legislation. Rather, it says that they have voted for end-of-life legislation (read: "ending your life prematurely against your will" legislation). Exactly. Freudian slip? Perhaps. Consistent? Yes. Of course TxRTL will oppose them! Gosh. (That is not the only problem with Issue 3, but it relates to the problems with Issue 2, which is the point of this particular post.)

End-of-life legislation could actually be pro-life - it could actually promote the value and dignity of each life until a person's natural death, but that has been a difficult task - because of the TCC, TAL, and TLC (which has gone back and forth on TADA). 

Finally, I have been asked what the difference is between the TCCB and TxRTL on end-of-life (and I'd add to this refusal to treat) issues. I do not speak for TxRTL at all. I do not have that authority. My view of the difference between the two organizations is based on my own observations, statements by the organizations, review of their written works, testimony before the legislature, etc. With that caveat, as I see it, TxRTL wants, at a minimum, the patient's will to be upheld which, if we persist in having a law like TADA, should at least require due process rights for ill patients in hospitals so that a decision may not be made to withdraw their life-sustaining treatment against their will in a bid to hasten their death because someone else has decided that their life has no value, no quality, and is futile. Ideally, this would require a hospital to treat until a patient could be transferred to another facility willing to continue that patient's life-sustaining treatment until their underlying condition (if any) results in their natural death or until natural death otherwise occurs. 

The TCCB supports TADA as a "balance of patient autonomy and [ ] physician conscience protection." See Parish Advisory at par. 2. The TCCB, as noted above in their Amici Curiae brief, "strongly supports §166.046 as indispensable for ensuring dignity at the end of life." Id. at 2. As noted, the TCCB sees "unnecessarily prolong[ing] the patient's death [as] violat[ive of] the dignity of the human person." Id. at 1. The TCCB has opposed such reforms as treatment until transfer and in the otherwise fatally flawed SB 303 faux TADA reform bill in 2013, and would only agree to extend the time to transfer from 10 to 14 days. Gee, thanks. 

TxRTL, as I see it, does not believe that TADA provides any patient autonomy at all and therefore provides no "balance" between that and doctor conscience. It is important to note that there is a difference between life-sustaining care and life-saving care. This is not a call to provide what the Church has called "extraordinary measures." It is not chemotherapy or radiation or such treatments. Rather it is "basic" care such as artificially administered nutrition and hydration or even ventilators; oxygen, like food and water, is necessary to life. (Since the removal of artificially administered nutrition and hydration has been tightened up, I have personally seen an increase in hospitals wanting to remove ventilators from patients to hasten their death now.) Primarily, I believe that TxRTL sees the patient's wishes as paramount and does not see why there cannot be real balance between doctors and patients without the patient's hastened death through the premature withdrawal of life-sustaining care being necessary. 

So now you have yet more evidence as to the TCCB's support of TADA and the nature of the dispute. 

I renew my request to Bishop Olson to meet with me to discuss these matters. I submit that the evidence is overwhelming that he has not been well-served by his advisors on these matters. This Advisory is just an example of the problems in the TCCB and the Church as a whole. As I have said, this should be the genesis of a larger movement to take back our troubled Church. 

Indeed, it has been suggested to me that I may actually have a moral obligations to do what I am doing. And so do the rest of you! 

According to the Code of Canon Law, Can. 212 §3: 

According to the knowledge, competence, and prestige which they ["the Christian faithful" or laity] possess, they have the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful, without prejudice toward their pastors, and attentive to the common advantage and the dignity of persons.

(Emphasis added.)

Please call, email, tweet, or mail Bishop Olson and respectfully request that he meet with me to discuss these issues that affect us all, Catholic or not.

Thanks for reading!

Updated: The Texas Bishops' Attack on Texas Right to Life: My Letter to Bishop Olson Requesting an In-Person Meeting to Discuss It

UPDATE: I'm updating this to include a link to Rep. Matt Rinaldi's letter to Bishop Burns. I think it is well worth reading. 

ORIGINAL POST:

You may have heard that the Texas Catholic Conference of Bishops issued a "Parish Advisory on Texas Right to Life" last week basically banning them from any parish property and telling everyone that TxRTL lies, misrepresents the faith, etc. As set forth by Bishop Olson of Fort Worth - who seems to be the primary promoter of this, "The advisory regards the hostile position of Texas Right to Life towards the authentic Catholic teaching on the dignity of human life..." None of this is true and no specific examples are given. Indeed, when I mentioned this to Bishop Olson in a tweet, I received no response. 

Readers of this blog know that I have taken issue with the TCCB's position on the Texas Advanced Directives Act ("TADA") and end-of-life issues as they seem to have consistently worked against any true reform efforts made to give even some semblance of due process to a patient. (If you are unfamiliar with TADA, search this blog, it has been pretty much entirely dedicated to that issue.) You know that I find nothing in Church teaching to support it morally. You know that I find nothing in the Constitution to support a total denial of due process rights to an ill patient. You know that I in no way support euthanasia, much less passive euthanasia, much less involuntary passive euthanasia which is exactly what TADA is. Thus, those that would work against any reform of this draconian law can only logically be said to support involuntary passive euthanasia. 

On the other hand, contrary to what I have written, try to find something where TxRTL has accused the TCCB of not holding fast to Catholic doctrine. Try to find TxRTL insulting the Bishops and calling them bad Catholics as Bishop Olson has done to them. Try to find something where TxRTL is claiming authority to teach Catholic doctrine. Try to find something where TxRTL is discussing Church doctrine. You won't find anything.  Because that is not their mission. They are not a Catholic organization, but a pro-life organization made up of individuals of various faiths. Their collective mission is promoting the value and sanctity of all life from womb to natural death - in utero, in the hospital, in all conditions from all threats that the culture of death brings. The allegations in this Advisory ring hollow because they are. In its response, Texas Right to Life did not respond in kind and did not get personal. 

The TCCB has come after TxRTL before, but never in so calumnious a manner. I suspect this is the result of the "Francis effect" and the "Trump effect." Decorum is out the window. Everything is a bar fight and you should expect that from those who see themselves as your opponents no matter what office they hold. It is a scandal. The Church is in crisis and that is no secret to anyone, Catholic or not. 

I thought long and hard about this situation. As a faithful Catholic, it both grieves and enrages me. We don't have enough to be concerned about and focused on? Really? But what is a lay person to do? The hierarchy are often misguided and believe themselves immune to correction - filial or by the laity. It seems a hopeless business. But in recent days I have been reminded of Blessed John Henry Newman who taught that a well-informed laity was necessary to the Church and, indeed, did much to save the Church from the effects of the Arian Heresy when the majority of bishops adopted that heresy. I have written of this before and analogized that heresy with the state of the TCCB on TADA. 

After thinking long and hard about this - praying - I felt a calling (a conviction as some of my dear, dear faithful Protestant friends might call it) to write the following letter which I have mailed and emailed to Bishop Olson after requesting four separate times on Twitter to meet to discuss these matters with him. (There was a time people met to discuss their differences calmly and professionally and in-person.) He "subtweeted" me and commented on the negativity of the tweets concerning the Parish Advisory. That avoids substance. If you have noticed anything about this blog, you should know that I am all about substance. I don't care much for talking points and who's allied with whom. I care about people, the pro-life cause, and the pro-life mission. I have worked with all the major groups in the state in my nearly 20 years in the movement. I have seen things that I will not share but have taught me a great deal. Politics is a messy business and not everything is as it seems and that is just as true for the organizations as it is for politicians. 

Trust me when I tell you that there is only one organization that is true to the pro-life message from womb until tomb via natural death (not hastened by the denial of life-sustaining treatment) and that is Texas Right to Life. If they ever cease to be faithful and consistent to the mission of protecting all life, I will talk to them privately and then go public if need be, following the counsel of the Bible. That is how we should all deal with one another. 

Thus, I have responded in what I hope is a respectful, meaningful, and substantive way. This letter is my fifth attempt to obtain a meeting with Bishop Olson. I explain why I think that is necessary and why I believe I am a person that can discuss these matters with him. I have no illusions (delusions?) that he will meet with me or anyone else even as I hope and pray he does. Nevertheless, believing that all things are possible with God, I ask each of you to prayerfully consider respectfully emailing, tweeting, calling, and writing him to ask him to meet with me about this. He needs to hear from someone other than those advising him and the TCCB to engage in scandal upon scandal as it relates to this ill-conceived Advisory and all the inside baseball internecine political warfare that this telegraphs to everyone. (And people are picking up on it because I'm being asked about just this aspect of it.) If he chooses not to meet with anyone on the matter and if the TCCB persists in this action without explanation and details to back up the flame-throwing, that in and of itself will tell you what you need to know. 

Here is my letter: 

As a final note, I will be sending a copy of this to my own Bishop Burns here in the Dallas Diocese, who put this on their website. The annual Bishop's appeal came this weekend right after this bomb was thrown by the TCCB. The Dallas Diocese will receive no money from my family. None. I will not support any organization that engages in these tactics and opposes meaningful, substantive reform to TADA. I encourage you all to consider doing the same and telling your bishops why. Sometimes we suffer in the short term so that we might benefit in the long term. It is time that we sacrifice in many ways so that we might begin to take back our Church. The laity has a voice, we need to use it. This is just one of many things going on that needs our attention, but it is local and it is significant because of all that it demonstrates about our leadership. 

A movement needs to happen. Here. Now. With you. With me. Before all truly is lost. Will you help?

Please pray for all involved. This is a mess - an embarrassing, scandalous, unnecessary mess created by the TCCB and ramped up to a feverish pitch by Bishop Olson. And...I think I'll just leave it at that.

Thanks for reading! 

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!

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! 

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. 

Who is he? 

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!