by Alexander M. Capron
University Professor and Scott H. Bice Chair in Healthcare Law, Policy and Ethics, University of Southern California
On November 26, 2013, Erick Munoz of Haltom City, Texas, found his wife Marlise unconscious on the floor of their kitchen; she had apparently suffered a pulmonary embolism. Mr. Munoz, a paramedic, succeeded in resuscitating his wife, who was rushed by ambulance to John Peter Smith (JPS) Hospital in nearby Fort Worth. Two days later, physicians concluded that Ms. Munoz met the criteria to be determined dead on neurological grounds. Mr. Munoz requested that the medical interventions that had been used in the attempt to save his wife’s life be withdrawn, but the hospital refused on the ground that the Texas Advanced Directives Act (TADA) forbids the withdrawal of “life-sustaining treatment” when the patient is pregnant, and Ms. Munoz was carrying a fetus of 14 weeks gestation.
Mr. Munoz—along with Marlise’s parents, who supported his decision—pleaded with the hospital for more than a month, to no avail. Finally, on January 14, 2014, his attorneys filed a petition asking the district court in Tarrant County to declare that the TADA does not apply to dead bodies or, if it does so apply, to rule that the statute’s prohibition on ceasing treatment during pregnancy constitutes an unconstitutional deprivation of equal protection or denial of privacy rights. Ten days later, Presiding Judge R.H. Wallace ruled that the statute does not apply to Marlise Munoz and ordered the hospital to pronounce her dead and “remove the ventilator and all other ‘life-sustaining’ treatment” from her body no later than 5:00 pm on January 27th.
As an ethical matter, this is certainly a good outcome. It must have been painful not only for Ms. Munoz’s loved ones but for many of the healthcare professionals who continued to apply medical interventions against her wishes and past the point when they could provide any benefit for her. Now, the family can be allowed to grieve over and to bury her body, and to turn their attention to the needs of the Munoz’s young son, who has been cared for by his grandparents while his father was absorbed with the tragedy at JPS Hospital.
As a legal matter, the result also seems a good one, though it is preferable when determinations of death are made by physicians, not courts. In this case, the judge’s conclusion that the statutory standard for determining death had been met was not based upon his hearing medical evidence and resolving a dispute over its meaning, since the hospital admitted that Ms. Munoz met the relevant medical criteria as of Nov. 28th. In effect, Judge Wallace was simply ordering the physicians to take the next step and officially pronounce her dead.
The heart of the decision is the declaration that the TADA does not apply to medical interventions on dead bodies. This seems correct, but since the judge has thus far only released his order and not an opinion explaining it, we cannot be entirely sure how he disposed of the two arguments made (in a rather inchoate fashion) by the District Attorney’s office on behalf of the hospital, which is a county facility. Since the DA had to accept his client’s own conclusion that Mr. Munoz has been dead since Nov. 28th, the first, difficult task he faced was to explain why a statute that sets rules for with withdrawal or withholding of treatment “without which a patient would die” (in the words of the statute) should apply to a dead body.
The hospital’s brief tried to overcome this problem by suggesting that Sec. 166.049, in forbidding the withdrawal or withholding of “life-sustaining treatment” from a pregnant patient was implicitly referring to sustaining two lives—first, the pregnant woman’s own life, and second, the life of her fetus. On this view, although the first goal is admittedly impossible (because Ms. Munoz has died), the second one is still possible and indeed, under the TADA, obligatory.
We can’t be sure why the judge rejected this view, but the canons of statutory interpretation which hold that the text of a statute should be read according to its plain meaning and so as to be internally consistent and coherent would support his doing so. Specifically, it makes sense to read “life-sustaining treatment” in 166.049 to refer to the pregnant woman’s life because that is the way the phrase is used elsewhere in the statute, when it establishes procedures for a person to refuse “life-sustaining treatment” in the event that the person has a terminal or irreversible condition: the person being referred to is plainly the formerly competent adult patient, not her fetus. In sum, with the hospital’s concession that Ms Munoz has been dead since Nov. 28th, any medical intervention on her body cannot be “life-sustaining treatment” since Ms Munoz herself has no remaining life to be sustained, and the statute doesn’t become relevant simply because intervening on Ms. Munoz’s dead body would sustain another life.
Although the defendant’s brief is less than crystal clear, the DA appears to have presented a second rationale for continuing treatment, not under the statute as such but as a means of implementing the intention manifested in a number of Texas statutes that the lives of fetuses be protected because they are “unborn children.” In some circumstances a pregnant woman’s interests in bodily integrity and self-determination outweigh the state’s interest in preserving fetal life. Here, the DA argued, since a dead pregnant woman doesn’t have an interest in self-determination, the State’s interest in protecting fetal life should prevail. Thus, the DA was urging the judge to resolve the dispute by telling the hospital to continue using the dead body of Ms. Munoz as the (necessary) means of conveying the fetal-life-sustaining treatment to her fetus.
Without explaining his reasoning, Judge Wallace rejected this argument as well, though we cannot tell whether he was also hinting that he would find it unacceptable were Texas to explicitly legislate that the bodies of dead pregnant women may be used without their or their families’ consent to gestate a fetus. I believe that such a statute would not only offend decent respect for the dead but contradict norms of consent to medical procedures: a woman who wishes to become a mother posthumously should have to indicate that affirmatively, with attention to the age of the fetus (since the risks of this experimental intervention are greater the younger the fetus) rather than taking such a wish to be the default position. The important point is that no such statute has been adopted, and in its absence the court would not impose such a limit on the choice of a pregnant woman, expressed in an advanced directive or by her authorized surrogate.
Judge Wallace was right to reject the application of the TADA and order the withdrawal of the machinery. For the sake of this family, I hope the legal and medical saga is now over, which is a reason for being glad that the judge didn’t rule on constitutional grounds, as that would have necessitated a long, drawn-out battle in the courts. Whatever the political climate on the abortion issue may be in Tarrant County, perhaps the DA can decide that given the hospital’s concession that the fetal isn’t viable, he doesn’t have to appeal the district court’s ruling.