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Legislative Scope of Practice: Patients Lose When We Let Politicians Play Doctor

Author’s note: This article was originally published on TexasMedicine.

In Texas, as in all other states, a person who is unable to make his or her own medical decisions has the right to an advance directive (AD) for restricting medical treatment; that is, unless that person is pregnant. If a woman is pregnant in Texas, she loses her right to an AD; that is true regardless of the stage of her pregnancy and without regard for the medical circumstances of her pregnancy.

In Texas, the law bars women from generating an AD that is binding in pregnancy, and it bars physicians from following a pregnant patient’s wishes if that patient is incapacitated. Taken to their logical conclusion, such laws abridge the fundamental right to refuse medical treatment by forcing treatment as prescribed by the legislature. We intend to show three fundamental problems with these laws.

First, they run counter to the intent of ADs. Second, they damage the patient-physician relationship by violating the right to bodily autonomy. Third, they prevent physicians from making ethical decisions with regard to their own practice.

The Texas Advance Directives Act, first enacted as the Natural Death Act in 1977, went through modifications in 1985 and again in 1989. The statute in the Texas Health and Safety Code includes the following language: “I understand that under Texas law this directive has no effect if I have been diagnosed as pregnant.” In addition, Sec. 166.049 of the code states, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.” Further, Sec. 166.098 extends the restriction on advance directives saying, “A person may not withhold cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board under this subchapter from a person known by the responding health care professionals to be pregnant.”

Thus, the law dictates the medical treatment of incapacitated pregnant women by mandating life-sustaining treatment. All of the iterations of the act have failed to include any sort of exemption for ADs in pregnancy.

The ban on ADs in pregnancy could easily hurt the patient-physician relationship by violating the fundamental principle against forced medical procedures. In the context of medicine, there is hardly a more important freedom than that of bodily autonomy. In Union Pacific Railway Company v. Botsford, the U.S. Supreme Court in 1891 held, “No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.”

This opinion has been echoed innumerable times since Botsford, including by the American Medical Association’s Council on Ethical and Judicial Affairs. We must then ask whether any government could have an interest that could serve as grounds for denying the right to which no other is “… held more sacred … in common law…” Even if we were to assume a pregnant woman is not entitled to voluntarily terminate her pregnancy under any circumstances, it goes quite a bit further to assume she also does not have the right to refuse medical treatment as a result of her pregnancy; such a mandate is a direct affront to the Botsford decision and violates the Code of Medical Ethics as the law is not one which ethically falls under the jurisdiction of “unquestionable judicial authority.” Thus, these Texas statutes are tantamount to mandatory organ donation for a living patient where the Texas Legislature is requiring donation of a woman’s entire body.

In addition to violating patients’ rights, the Texas Advance Directives Act, which does not define conditions under which life-sustaining care could be withheld from a patient who is not legally dead, results in liability for physicians and hospitals making the ethical decision to withdraw life-sustaining treatment from a pregnant patient. Thus, even in the absence of an AD, physicians cannot withdraw life support from a pregnant patient unless that patient is legally dead.

Moreover, there are no specified time limitations on that liability, so it extends back to the time when the law went into effect. Thus, virtually all practicing physicians who have withdrawn life support from a reproductive-age woman have the potential for open liability unless they confirmed their patient was not pregnant before withdrawal.

Why then, when we hold medicine to such high standards, do we remain silent on this critical issue, especially in situations that pit the ethical practice of medicine against the law? The Texas Legislature is putting physicians in a moral dilemma between the threat of legal liability, upholding their personal ethics, and honoring the rights of their patients.

To date, the Texas Medical Association has offered no opinion on this critical issue. To remain silent is tantamount to abandoning our patients while politicians promulgate their personal values as the law of the land without regard for established scientific and medical standards or legal and ethical norms. Organized medicine should have the courage to take a stand to ensure that trust in physicians is not conditional upon the political climate of the state. We should hope to look back upon these challenges and be proud of standing up for the rights of our patients.

Ideally, Texas would amend the Texas Advance Directives Act to give women the ability to enact a directive that could be followed in pregnancy. In cases in which a pregnant woman has no living will, the mandate not to remove life support should leave room for interpretation by a physician’s professional judgment, a hospital ethics committee, and the family’s wishes.

Though the tragic circumstances in which these laws would be applied are rare, the legislations that presume a superior understanding of the moral and medical intricacies of complex situations are a threat to the fair and compassionate practice of medicine and to the rights of women everywhere.

Rachel Solnick Rachel Solnick (2 Posts)

Contributing Writer Emeritus

Baylor College of Medicine

Rachel is a Class of 2015 medical student at the Baylor College of Medicine in Houston, Texas.