Politicians Play Doctor in Texas

In Texas, as in all other states, a person who is unable to make his or her own medical decisions has the right to an advance directive (AD) for restricting medical treatment; that is, unless that person is pregnant. A pregnant woman in Texas loses her right to an AD; that is true regardless of the stage of her pregnancy and without regard for the medical circumstances of her pregnancy.

In Texas, the law bars women from generating an AD that is binding in pregnancy, and it bars physicians from following a pregnant patient’s wishes if that patient is incapacitated. Taken to their logical conclusion, such laws abridge the fundamental right to refuse medical treatment by forcing treatment as prescribed by the legislature. We intend to show three fundamental problems with these laws.

First, they run counter to the intent of ADs. Second, they damage the patient-physician relationship by violating the right to bodily autonomy. Third, they prevent physicians from making ethical decisions regarding their own practice.

The Texas Advance Directives Act, first enacted as the Natural Death Act in 1977, went through modifications in 1985 and again in 1989. The statute in the Texas Health and Safety Code includes the following language: “I understand that under Texas law this directive has no effect if I have been diagnosed as pregnant.” In addition, Sec. 166.049 of the code states, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.” Further, Sec. 166.098 extends the restriction on advance directives saying, “A person may not withhold cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board under this subchapter from a person known by the responding health care professionals to be pregnant.”

Thus, the law dictates the medical treatment of incapacitated pregnant women by mandating life-sustaining treatment. All of the iterations of the act have failed to include any sort of exemption for ADs in pregnancy.

The ban on ADs in pregnancy could easily hurt the patient-physician relationship by violating the fundamental principle against forced medical procedures. In the context of medicine, there is hardly a more important freedom than that of bodily autonomy. In Union Pacific Railway Company v. Botsford, the U.S. Supreme Court in 1891 held, “No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” […]

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by Rachel E. Solnick and Austin G. Meyer