Texas law didn’t anticipate Muñoz case, drafters say

Posted Friday, Jan. 24, 2014  comments  Print Reprints
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An attorney who helped rewrite the state law being used to keep a pregnant Haltom City woman on life support said lawmakers never discussed it being applied to a brain-dead person.

Thomas Mayo, an associate law professor at Southern Methodist University who helped draft the latest version of the advance directive section of the Texas Health and Safety Code in 1999, said that he does not recall discussing that aspect of the law.

“It never would have occurred to us that anything in the statute applied to anyone who was dead,” Mayo said in an interview. “The statute was meant for making treatment decisions for patients with terminal or irreversible conditions.”

Debate about the law will be at the heart of a court hearing today when the family of Marlise Muñoz asks state District Judge R.H. Wallace to force John Peter Smith Hospital to remove her from life support that would also end the life of the fetus.

Marlise Muñoz, 33, has been hospitalized since just before Thanksgiving after she was stricken by a pulmonary embolism when she was 14 weeks pregnant. The family immediately asked that life support be removed.

The county-owned hospital, however, would not allow the family to do so, quoting a portion of Texas law that requires a pregnant women be kept on life support until there is a viable fetus, usually at 24 to 26 weeks. On Monday, Marlise Muñoz entered her 22nd week of pregnancy.

This week, attorneys for the Muñoz family released a statement saying that medical records indicate that the fetus is “distinctly abnormal,” with lower extremities deformed, and suffers from a number of other serious health conditions including water on the brain and heart problems.

A flurry of court documents were filed in the case Thursday in preparation for today’s hearing. In one filing, JPS states for the first time that Marlise Muñoz met the criteria for brain death on Nov. 28 but contends that removing life-sustaining treatment would violate the law.

“To interpret the statute so that life-sustaining treatment is withdrawn, causing the death of the unborn child,” would be “contrary to this state’s expressed commitment to the life and health of unborn children,” the court document states

The legal fight

Heather King and Jessica Hall Janicek, the attorneys for the Muñoz family — her husband Erick and her parents — argue that the hospital is misconstruing the Texas Health and Safety Code by failing to read the relevant sections in conjunction with the entirety of the code.

First, they argue that when you apply one section of the code, Marlise Muñoz would be considered already dead because “there is irreversible cessation of the person’s spontaneous respiratory and circulatory functions.” So JPS would not be removing life-sustaining treatment.

The lawsuit also argues that even if JPS was to argue that the health code applies to Marlise Muñoz, the Advance Directives Act does not extend the prohibition of withholding or withdrawing life-sustaining support to the unborn child.

Finally, the attorneys argue that the section of the health code that says “a person may not withdraw or withhold life-sustaining treatment … from a pregnant patient” violates Marlise Muñoz’s Fourteenth Amendment right to privacy with regard to making decisions about her own body and equal protection under the law.

Erick Muñoz, a paramedic for the Crowley Fire Department, and his wife, who was a paramedic with Children’s Medical Center of Dallas, had discussed removing life support if either fell into a vegetative state.

Tarrant County Assistant District Attorney Larry M. Thompson, who is representing JPS, states in documents filed Thursday that while there is no case law interpreting the section regarding pregnant patients, the reasonable inference is that it was enacted to protect the unborn child’s life “against the wishes of a decision maker who would terminate the child’s life along with the mother’s.”

Lawmakers also have strongly demonstrated a commitment to protect unborn children by including in the Texas Penal Code a definition that says a human being is alive at every stage of gestation from fertilization to birth. This means someone may commit murder if during the criminal offense an unborn child is killed, the document states.

The Legislature also passed the Woman’s Right to Know Act which states that substantial medical evidence shows that an unborn child is capable of feeling pain by not later than 20 weeks after fertilization.

Thompson also argues that the law is constitutional because the right of privacy is not absolute and must be balanced with the state’s interest to protect the life of an unborn child.

And even if Wallace rules that the law is unconstitutional, Thompson argues that the court may not enter a final judgment for at least 45 days after the Texas attorney general’s office is notified, which would be Feb. 28.

History of the law

The Texas Advance Directives Act is modeled after a California law that dates back to 1977.

Mayo said in an affidavit that he was part of a large drafting group in 1998-1999 responsible for drafting the Advance Directives Act. The group included representatives from several organizations, including the Texas Medical Association and the Catholic archdiocese of Austin and Texas Right to Life.

They were tasked with taking three existing statutes — the Natural Death Act, the Out-of-Hospital Do-Not-Resuscitate law and the Durable Power of Attorney for Health Care law — that addressed end-of-life treatment in some fashion and combine them into a single law while eliminating inconsistencies, the document states.

In the affidavit, Mayo says the “pregnancy exclusion” was not discussed much but he recalls “that some academic commentary questioned the constitutionality of such provisions but that there was no general enthusiasm in favor of dropping the provision.”

“I don’t see the Texas Legislature taking out the pregnancy exclusion,” he told the Star-Telegram. “There is not a problem with the statute; there is a problem with the application of the law to a patient that is no longer alive.”

Former Fort Worth Mayor Mike Moncrief, then the state senator from Fort Worth, was involved in the effort to rework the Advance Directives Act as part of a package of long-term care bills. He said that the Advance Directive Act was a very difficult topic at the time.

“We wanted to avoid unintended consequences. We wanted to put the best bill that we could before the Legislature,” Moncrief said.

“This is putting the judge and caregivers in a terrible position,” Moncrief said. “It’s just unfortunate that this set of circumstances has arisen and it’s a helpless feeling that you can’t do anything about the law until the next session.”

But state Rep. Stephanie Klick, R-Fort Worth, doesn’t see any ambiguity and doesn’t think the directives act needs to be changed.

“We’ve gone back and looked at the language. We’ve listened to audio tapes … It is very clear that this [the pregnancy issue] is to protect life,” Klick said.

“There may not be the ability to save the life of the mother, but the hope was that they [the hospital] could protect the life of an unborn child. It’s a terrible position for the family,” she said.

Max B Baker, 817-390-7714 Twitter: @MaxBBaker Elizabeth Campbell, 817-390-7696 Twitter: @fwstliz

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