Breaking barrier indicates larger changes possible
B
y Jacqueline C. Harvey Ph.D.
AUSTIN Texas (Texas Insider Report) After five consecutive sessions of
bitter battles over end-of-life bills the Texas Legislature is finally
poised to pass the first reform to the Texas Advance Directives Act (TADA) in 12
years. An issue that created
uncanny adversaries out of natural allies and equally
odd bedfellows has finally found common ground in H.B. 3074 by
State Rep. Drew Springer.
H.B. 3074 simply prohibits doctor-imposed euthanasia by starvation and dehydration.
Since H.B. 3074 includes only those provisions and language that
all major organizations are on record as having deemed acceptable in previous legislative sessions there is finally hope of ending the end-of-life impasse in the Texas Capitol.
Many would be surprised to learn that
Texas law allows physicians to forcibly remove a feeding tube against the will of the patient and their family. In fact there is a greater legal penalty for failing to feed or water an animal than for a hospital to deny a human being food
and water through a tube.
This is because there is
no penalty whatsoever for a healthcare provider who wishes to deny artificially-administered nutrition and hydration (AANH). According to
Texas Health and Safety Code every living dumb creature" is legally entitled to access to suitable food and water.
Denying an animal food and water like in
this January case in San Antonio is punishable by civil fines up to $10000 and criminal penalties up to two years in jail per offense. Yet Texas law allows health care providers to forcibly deny food and water from human beings what they would not be able to legally do to their housecat. And healthcare providers are immune from civil and criminal penalties for denial of food and water to human beings as long as they follow the current statutory process which is sorely
lacking in safeguards.
Therefore while it is surprising that
Texas has the only state law that explicitly mentions food and water delivered artificially for the purpose of completely permitting its forced denial (the other six states mention AANH explicitly for the opposite purpose to limit or prohibit its refusal) it is not at all surprising that the issue of protecting a patients right to food and water is perhaps the one point of consensus across all major stakeholders.
H.B. 3074 is the first TADA reform bill to include only this provision that is agreed upon across all major players in previous legislative sessions.
There are irreconcilable ideological differences between two major right-to-life organizations that should supposedly be like-minded: Texas Alliance for Life and Texas Right to Life. Each faction (along with their respective allies) have previously sponsored broad and
ambitious bills to either preserve but reform the current law (
Texas Alliance for Lifes position) or overturn it altogether as
Texas Right to Life aims to do.
Prior to H.B. 3074 bills filed by major advocacy organizations have often included AANH but also a host of other provisions that were so contentious and unacceptable to other organizations that each bill ultimately died and this mutually-agreed-upon and vital reform always died along with it.
2011 & 2013 Legislative Sessions present prime example
This 2011
media report shows the clear consensus on need for legislation to simply address the need to protect patients rights to food and water:
Hughes bill sponsor for Texas Right to Life has widespread support for one of his bills goals: making food and water a necessary part of treatment and not something that can be discontinued unless providing it would harm the patient."
Nonetheless in 2013 both organizations and their allies filed complicated contentious opposing bills both of which would have protected a patients right to food and water but each bill also included provisions the rival group saw as contrary to their goals. Both bills were ultimately defeated and neither group was able to achieve protections for patients at risk of forced starvation and dehydration - a mutual goal that could have been met through a third narrow bill like H.B. 3074.
H.B. 3074 finally focuses on what unites the organizations involved rather than what divides them since these differences have resulted in a 12 year standoff with no progress whatsoever.
H.B. 3074 is progress that is pre-negotiated and pre-approved.
It is not a fertile springboard for negotiations on an area of mutual agreement. Rather it is the culmination of years of previous negotiations on bills that all came too late either due to the complex
nature of rival bills the controversy involved or even both.
On the contrary H.B. 3074 is not just simply an area of agreement; moreover it is has already been negotiated. It should not be stymied by disagreements on language since Texas Alliance for Life and Texas Right to Life (along with their allies) were able to agree on language in 2007 with C.S.S.B. 439.
C.S.S.B. 439 reads that unlike the status quo that places no legal conditions on when food and water may be withdrawn it would be permitted for those in a terminal condition if
reasonable medical evidence indicates the provision of artificial nutrition and hydration may hasten the patients death or seriously exacerbate other major medical problems and the risk of serious medical pain or discomfort that cannot be alleviated based on reasonable medical judgment outweighs the benefit of continued artificial nutrition and hydration."
This language is strikingly similar to
H.B. 3074 which states except that artificially administered nutrition and hydration must be provided unless based on reasonable medical judgment providing
artificially administered nutrition and hydration would:
- Hasten the patients death;
- Seriously exacerbate other major medical problems not outweighed by the benefit of the provision of the treatment;
- Result in substantial irremediable physical pain suffering or discomfort not outweighed by the benefit of the provision of the treatment;
- Be medically ineffective; or
- Be contrary to the patients clearly stated desire not to receive artificially administered nutrition or hydration."
With minimal exceptions (the explicit mention of the word terminal the issue of medical effectiveness and the patients right to refuse) the language is virtually identical and in 2007
Texas Right to Life affirmed this language as clarifying that ANH can only be withdrawn if the risk of providing ANH is greater than the benefit of continuing it."
Texas Right to Life would support the language in H.B. 3074 that already has
Texas Alliance for Lifes endorsement. Any reconciliation on the minor differences in language would therefore
be minimal and could be made by either side but ultimately both sides and their allies would gain a huge victory the first victory in 12 years on this vital issue.
It seems that the Texas Advance Directive Act even among its sympathizers has something for everyone to oppose.
The passage of H.B. 3074 and the legal restoration of rights to feeding tubes for Texas patients will not begin to satisfy critics of the Texas Advance Directives Act who desire much greater changes to the law and will assuredly continue to pursue them. H.B. 3074 in no way marks the end for healthcare reform but perhaps a
shift from the belief that anything short of sweeping changes is an endorsement of the status quo.
Rather we can look at H.B. 3074 as breaking a barrier and indicating larger changes are possible.
And if nothing else by passing H.B. 3074 introduced by State Rep. Drew Springer (right) we afford human beings in Texas the same legal access to food and water that we give to our
horses. What is cruel to do to an animal remains legal to do to humans in Texas if organizations continue to insist on the whole of their agenda rather than agreeing to smaller bills like H.B. 3074.
The question is can twelve years of bad blood and bickering be set aside for even this most noble of causes?
Dr. Jacqueline C. Harvey (Ph.D.) is a former faculty member at the University of North Texas as well as the University of Michigan-Dearborn. Harvey in conjunction with the Euthanasia Prevention Coalition International has authored definitive works on the Texas Advance Directive Act. For further information visit https://umd-umich.academia.edu/JacquelineCHarvey.
