Euthanasia: President Bush and Texas Law
by Dr. Joseph GrahamMonday, April 25, 2005
During the long, tragic, and ultimately futile struggle to save the life of Terri Schiavo, President George W. Bush used the power of the Presidency to actively intervene in an effort to save her from death by starvation and dehydration. Tragically, even the President of the United States could not gain reprieve from the death sentence imposed on Terri because of her helpless condition, and she was executed under the full protection of the laws of the United States. Even the Supreme Court of the United States took the occasion to give approbation to her execution. However, the compassion of President Bush manifested towards the helpless Terri Schiavo was not without criticism. Some accused him of hypocrisy because as Governor of Texas, George W. Bush had signed into law the Texas Advanced Directives Act in 1999. According to this Act, if a doctor or hospital should decide to refuse lifesaving treatment to a patient for whatever reason, the patient is allowed ten days to find an institution or caregiver who will provide such treatment and so save his or her life. During that ten-day period the patient must be given life-sustaining treatment. The charge of hypocrisy arises from the fact that under existing law, if the patient in question cannot find alternative care, then all treatment is denied and the patient dies a tragic and painful death.
The critics implied that somehow by signing the Texas Advanced Directives Act, then-Governor Bush sanctioned the barbaric practice where doctors and hospitals willfully and with malice aforethought kill patients under their care by denying them food and water. Because both Texas Right to Life and National Right to Life were parties to the negotiations that led to the formulation of the language of the Texas Advanced Directives Act, the true origin and intent of the bill has been misconstrued. The purpose of the Act was not to sanction the heinous practice of killing the most helpless by starvation and dehydration as done to Terri Schiavo. The Supreme Court of the United States in the infamous Nancy Cruzan decision had already given legal sanction to that vile practice. Rather, the intent was to give patients who had already been sentenced to death by their medical caregivers at least some opportunity for reprieve by way of alternative care - if possible. Tragically, Terri Schiavo was denied the opportunity for such alternative lifesaving care even though the care was readily available.
Prior to passage of the Texas Advanced Directives Act in 1999, an article appeared in the August 1996 edition of the authoritative Journal of the American Medical Association that outlined legal procedures for hospitals and medical personnel to follow in order to withdraw patient treatment and to unplug the machines that were preserving patients' lives, thereby causing their deaths. These actions included the denial of food and water. Such procedures could be done for a variety of reasons, including patients' continued existence constituted a financial burden to the institution. The set of procedures outlined was called The Houston Plan because the 'Plan' was developed in Houston , Texas and resulted from a series of meetings that involved representatives from every major hospital system in Houston.
The following year, during the 1997 session of the Texas Legislature, a bill was introduced (Senate Bill 414). This bill included a provision stating that any medical doctor in Texas who denied lifesaving treatment to a patient requesting such treatment would be free of any culpability either civil or criminal if the patient were to suffer harm or death as a result of his decision. Passage of this bill would have given sanction to active legal involuntary euthanasia in Texas . Texas Right to Life fought against passage of the bill with all the resources at our command. Rep. Longoria of San Antonio introduced our desired amendments that would have given the patient the right to receive continued lifesaving treatment until another caregiver could be found who would save his or her life. These amendments were passed in the House of Representatives but were stripped from the bill in the conference committee meetings. Consequently, Senate Bill 414 was passed by the legislature and forwarded to Governor Bush for his signature in order to become Texas law.
As President of Texas Right to Life, I had the opportunity to meet with the Governor and to discuss the nefarious aspects of Senate Bill 414 awaiting his signature. Governor Bush immediately understood the death dealing implications of the legislation and without hesitation used his veto to consign Senate Bill 414 to the trash bin where it properly belonged. He did so knowing full well that this action would incur the wrath of powerful organizations such as the Texas Medical Association, The Texas Bar Association and the Texas Hospital Association. His action was that of a truly dedicated and courageous Pro-Lifer! When he vetoed the legislation, he further recommended that all interested parties, including Texas Right to Life and representatives of the legal and the health care communities should meet and discuss the relevant issues. The goal of these meetings was to arrive at mutually acceptable language that could be incorporated into legislation that he and we could accept.
What followed was two years of protracted and oftentimes mind-numbing negotiations. The negotiator for Texas Right to Life was Burke Balch, J.D., who is the director of the Robert Powell Center for Medical Ethics, a division of the National Right to Life Committee. As the nation's premiere expert on medical ethics and particularly end-of-life issues, Burke proved to be an outstanding defender of the helpless innocents while working under the most difficult of circumstances. The position of Texas Right to Life was and remains that if a doctor or hospital should decide for whatever reason to terminate life support to a patient, including denial of food and water, the caregiver must continue such support until another caregiver can be found who will keep that patient alive and provide the care necessary to do so. All other parties to the negotiations were adamant in their refusal to entertain such conditions and fought to retain the existing situation where a patient who was denied life saving treatment had NO legal right to ANY grace period afforded to secure alternative sources of treatment.
With great reluctance, Texas Right to Life agreed to a mere 10 day grace period. Due solely to the negotiating skills of Burke Balch, this niggardly concession was wringed from the representatives of the legal and medical professions who from the beginning of negotiations wanted NO grace period whatsoever to be included in the proposed Advanced Directives legislation. Only the continued threat of another Governor Bush veto had forced them to the negotiating table at all and likewise evoked their concession to the 10-day waiting period before beginning the execution of the death sentence on the helpless patient. Then-Governor Bush was the true hero of this, using his gubernatorial authority to extract from obdurate medical negotiators a concession that they insisted constituted an excessive financial burden.
The Advanced Directives Act that is now the law of Texas mandates that hospitals and doctors provide 10 days notice of their intention to withdraw life-sustaining treatment, including the denial of food and water. During the 10-day grace period, the health care facilities are to assist patients or their surrogates in finding a facility willing to receive the patient and to continue the treatment. Granted, these transfers are very difficult to secure, but prior to the present law, NO protections or grace period were afforded. The law works both ways. If a doctor disagrees with the wishes of a patient or the surrogates and wants to continue lifesaving treatment, the 10 days allows time to dialogue and hopefully reach an agreement before any action is taken. In either case, treatment is continued during the grace period.
The tragic Terri Schiavo case and the sad denouement, terminating in Terri's death by starvation has promoted discussion of the Advanced Directives Act in Texas. Critics have noted that doctors and hospitals in Texas are allowed to starve and dehydrate patients to death in Texas as they are in Florida where Terri was killed. That situation is the result of an infamous Supreme Court decision (The Nancy Cruzan Decision) so sweeping in scope that even an act of the United States Congress could not impede its application in the Schiavo case. The willful killing of Terri Schiavo was legal in Florida as it would have been in Texas. In fact, patients die in hospitals and hospices in Texas at the hands of their "caregivers" just as they do in Florida and in every state of the Union. As Governor Jeb Bush of Florida discovered to his sorrow, the Governor cannot alter this situation. What a state's Governor can do is persuade medical care givers to give patients under the sentence of death a few days (more than 10 preferably) in order to secure lifesaving care and treatment elsewhere. This action is what then-Governor George Bush took when he signed the Advanced Directives Act in Texas. Texas Right to Life was involved in the negotiations that led to according patients at least a 10-day grace period before their death sentence is carried out. The Supreme Court decision that sanctioned death by starvation and dehydration for helpless patients said nothing about any such waiting period prior to execution. For instance, Florida has no such provision. In fact, Texas was the first State to give patients a minimal opportunity to escape their sentence and so continue their lives. President George W. Bush was and remains a trailblazer in the struggle to overcome the Culture of Death and continues to lead the fight to restore the unalienable right to life and dignity of every human person as is evidenced by his efforts in Texas and in Florida. He is to be applauded for all his efforts to gain justice and protection for the weakest and most helpless among us.
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