by Thaddeus Mason Pope
Director of the Health Law Institute, Hamline University
Marlise Munoz is dead. Yet, despite her husband’s instructions, John Peter Smith Hospital has refused to withdraw intensive care interventions sustaining Munoz’s body. The hospital explained both in the media and in court that it was bound by Texas Advance Directives Act, section 166.049. That statute provides: “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.”
But as I and others have argued, this statute has no possible application to Munoz. The Texas Advance Directives Act defines “life-sustaining treatment” as that which “sustains the life of a patient and without which the patient will die.” Because Munoz has already died, cardiopulmonary or any other form of support is not, and cannot for her be, “life-sustaining.” In short, the unambiguous language of the law requires only that a living pregnant woman be kept alive.
On January 24th, the Tarrant County, Texas District Court agreed. It held: “the provisions of § 166.049 . . . do not apply to Marlise Munoz because, applying the standards used in determining death set forth in § 671.001 . . ., Mrs. Munoz is dead.”
But the court stayed its order until Monday evening. By then, the hospital may appeal. And despite the seeming open-and-shut nature of the legal issue here, such an appeal might not be frivolous. That is because there is more than one way to interpret a statute.
Munoz’s husband and the court employed a textualist theory. They applied the plain meaning of the statutory text. And this was wholly appropriate. As statutory interpretation expert Bill Eskridge explains, plain meaning is probably the “best guide for applying a statute, because plain meaning is the most obvious and perhaps the most objective focal point for all of us to know what the rule of law requires.” One might say that plain meaning is, including in Texas, the “default rule” in statutory interpretation.
But textualism is hardly the only theory of statutory interpretation. Purposivism, for example, looks beyond the text. It asks, “What was the statute’s goal?” “What was its purpose?” And this seems to be just the sort of argument the hospital asserted. Citing to other Texas statutes enacted to protect unborn children, the hospital argued: “To interpret the statute so that life sustaining treatment is withdrawn, causing the death of the unborn child, would also be contrary to this state’s expressed commitment to the life and health of unborn children.”
Judicial rules and canons seem to favor the Munoz family. For example, the Texas Supreme Court has held: “Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on.” In this case, the literal text of the pregnancy clause in the Texas Advance Directives Act does not apply to Munoz. But an appellate court might hold that this is an extraordinary case that requires looking beyond the literal text.