The Texas Futile Care Law and the Schiavo case:
    The Note gets taken out for a spin

What part of “being disconnected from life support against your express wishes” does Mark Halperin need explained more slowly?

ABC News’s “The Note” has finally figured out that the Texas law was about “futile care” rather than “future care,” but seems to have been completely spun around by the White House on what that law means:

A few thoughts about the Texas Advance Directives (or “Futile Care” law) signed by then-Governor George W. Bush in 1999.

The press coverage at the time, as well as many policy entrepreneurs who are familiar with it, represent it to us as a law that strengthened, not weakened, protection for the dying and incapacitated.

It expanded, as White House Press Secretary Scott McClellan says, a 72-hour waiting period after a formal, post-appeal decision has been made by seven days. It also required a hospital to spent those 10 days in total looking for another facility who would care for a patient.

It created a mechanism for an independent, outside panel to review decisions made by doctors that disagree with court-appointed surrogates (rather than, as the existing law seemed to allow, the doctors’ word to be presumed final).

And it was written with help from Texas Right To Life. As McClellan hinted at, after a controversy involving allegedly death-happy doctors in Houston, Bush in 1997 refused to sign a law that allowed hospitals to essentially disregard the rights of surrogates if doctors felt another way, and he worked with legislators from both parties and to craft a newer law that reflected his own values.

So while the law clearly does allow for treatment to be discontinued even over disagreements, it also represented for Bush a significant tightening on what had been a relatively loose, hospital-centric futile care law.

So it’s hard to argue, on the basis of this law alone, that Bush is being anything but consistent. Perhaps a case can made on the basis of some other concept, but not here.

Since Bush had vetoed an earlier law at the instance of the right-to-lifers, it seems implausible that the 1999 law in fact represented a tightening of earlier procedures. And it’s not just the wishes of “surrogates” that can be overridden: the patient’s own advance directive, or even the patient’s current request to be kept alive, can also be overridden if the provider regards the care as “inappropriate.”

Whatever the law might have been before, the new law clearly would clearly allow Terri Schiavo’s health care providers to remove her feeding tube: she’s in an irreversible condition as the law defines it. If that’s murder, as Tom DeLay says it is, then Mr. Bush signed a law allowing for murder.

(Detailed analysis of the law here. If you doubt my reading, here’s the text of the law itself.)

And here’s the analysis of somone who was at the table when the law was written:

Thomas Mayo, an associate law professor at Southern Methodist University who helped draft the Texas law, said that if the Schiavo case had happened in Texas, her husband would have been her surrogate decision-maker. Because both he and her doctors were in agreement, life support would have been discontinued.

So, yes, I’d say that the President is being “anything but consistent.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com