Attorneys are preparing legal action on behalf of the family of Marlise Machado Muñoz, the pregnant Haltom City woman being kept on life support at John Peter Smith Hospital against her family’s wishes under an obscure Texas law.
“We do plan on filing some litigation, and it will be filed soon,” said attorney Heather King of the Southlake office of Koons Fuller, which specializes in family law.
King and a colleague, Jessica Janicek, declined to provide further details, saying they didn’t want to compromise their strategy. They received the case two days ago, Janicek said, but “we are making progress.”
Muñoz, 33, has been hospitalized since she was stricken Nov. 26 with what doctors believe was a pulmonary embolism, said her husband, Erick Muñoz. She entered her 20th week of pregnancy Monday, he said. The family has not publicly released her hospital records but says she’s brain-dead.
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The county hospital in Fort Worth says its hands are tied by a Texas law that requires pregnant women to be kept on life support until a viable fetus can be delivered, usually after 24 to 26 weeks.
“JPS is encouraged by this development because the courts are the appropriate venue to provide clarity, direction and resolution in this matter,” J.R. Labbe, the hospital system’s vice president of communications and community affairs, said in a statement. “JPS remains focused on providing compassionate care to all patients while also following the law as it applies to healthcare in the state of Texas.”
The hospital’s outside counsel is Neal Adams, who led the drive to end abortions at JPS in 1988 and is on the advisory board of the Northeast Tarrant Right-to-Life Educational Association, based in Euless. His firm mainly handles contracts for the hospital, while medical litigation is primarily handled by the Tarrant County District Attorney’s Office, Labbe said.
The Texas statute, which dates to the 1970s and has been revised twice, states: “A person may not withdraw or withhold life-sustaining treatment … from a pregnant patient.”
But several medical ethicists and attorneys interviewed by the Star-Telegram and The Associated Press questioned whether the law pertains if the woman is brain-dead.
“I think the Texas law cannot apply to the dead,” said Art Caplan, director of medical ethics at NYU Langone Medical Center in New York. “I think the hospital is wrong to insist that it does.”
Speaking last week, Caplan suggested that the husband go to court “to challenge the law both in terms of its application to a dead woman and as an unconstitutional infringement on his right to do what his wife would want.”
Dr. Robert Fine, clinical director of the office of clinical ethics and palliative care for Baylor Health Care System, told the AP that if a patient is brain-dead, the patient is legally dead. “This patient is neither terminally nor irreversibly ill,” he said.
A report by the Center for Women Policy Studies asserted that state laws with pregnancy exclusions to living wills violate both a woman’s right to refuse life-sustaining treatment and her right to abortion under Roe v. Wade.
By 2011, the number of states that automatically invalidate a pregnant woman’s advance directive had dropped to 12, including Texas, from 22 in 1992, the feminist research center said in an August report.
Slightly more states, however, have statutes that ignore living wills if the fetus is “probably” viable or meets another standard. An additional 14 are silent on the issue, which could leave it to the courts to resolve a conflict.
Only five states — Maryland, Minnesota, New Jersey, Oklahoma and Vermont — clearly allow women to declare their wishes regarding pregnancy in their advance directives and to guarantee that their instructions will be followed, it said.
“We follow the state law. Period,” Labbe, the JPS spokeswoman, said last week of the Texas statute. “There is no gray in this.”
Erick Muñoz said that he and his wife are both paramedics — she with Children’s Medical Center of Dallas, he with the Crowley Fire Department — and that they had discussed removing life support if either fell into a vegetative state. Moreover, she discussed the issue with her father, Ernest Machado, he said.
The couple have a 14-month-old son.