The End of the Texas Impasse: The Moral Case for HB 3074

Since 1999, Texas has defined artificially administered nutrition and hydration (AANH) as something that is not morally considered ordinary care. In fact, the law essentially determines that it is a form of medical treatment by stating, “’Life-sustaining treatment’ means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration” (Texas Health and Safety Code, Chapter 166). The problem lies with the term “treatment”. Exactly how is giving nutrition and hydration a treatment?

Interestingly, St. John Paul II warns against this type of designation in his address to the International Congress on the “Life-Sustaining Treatments and Vegetative State”. St. John Paul II spoke of the importance of recognizing that nutrition and hydration, even artificial nutrition and hydration, as a “means of preserving life, not a medical act” and therefore as a means of ordinary care. He also goes on to elaborate that this type of care is morally obligatory.

hands-578917_640In addition to the other problems with the current Texas law dealing with end-of-life care, this conflict with the civil law has created a legislative quagmire when it comes to how the law should be reflected. Pro-life organizations have primarily focused on either reforming the entire law or abolishing it as has been explained in previous articles. As an unfortunate result, the matter of nutrition and hydration has not received the attention it deserved. However, just recently, Dr. Jacqueline Harvey published an article about a legislative initiative filed by Texas State Representative Drew Springer. HB 3074, instead of trying to reform all the contentious portions of the Texas Advanced Directives Act, seeks to only fix this one portion. Dr. Harvey is quite right in her analysis of the political situation regarding this much-needed legislation. This is evident in that both sides of the contentious debate have essentially preapproved the language of HB 3074, since it uses language that was preapproved. Furthermore, she is also correct in her evaluation when she states, “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 patient’s right to food and water is perhaps the one point of consensus across all major stakeholders.”

However, for the Catholic, there is a much deeper question that must be asked—what makes HB 3074 morally licit? As previously noted, current Texas law allows for a situation in which a patient can be forced off of artificially administered nutrition and hydration, even if that care is considered morally ordinary. As it stands, this is an injustice under existing law that needs to be corrected. As St. Thomas Aquinas decidedly states, “Human law has the nature of law in so far as it partakes of right reason; and it is clear that, in this respect, it is derived from the eternal law. But in so far as it deviates from reason, it is called an unjust law, and has the nature, not of law but of violence” (Summa Theologica, I-II, Q 93, a. 3). And it is through this unjust law that violence (specifically violence by euthanasia) can truly be seen when a patient’s nutrition and hydration is unethically removed. For St. John Paul II, this constitutes euthanasia by omission: “Death by starvation or dehydration is, in fact, the only possible outcome as a result of their withdrawal. In this sense it ends up becoming, if done knowingly and willingly, true and proper euthanasia by omission” (Address to International Congress on “Life-Sustaining Treatments and Vegetative State”, no. 4).

St. John Paul II gave mankind a blueprint on how to combat unjust laws with the Principle of Incrementalism. In brief, the principle states the following: 1) that an evil law must already exist, 2) that the proposed legislation must limit the harm of the existing evil law, and 3) lessening the evil law’s negative consequences at the level of general opinion and public morality (see Evangelium Vitae, no. 73). It is obvious that the first element of the principle has been established; but what about the other two elements?

Firstly, how does HB 3074 limit the harm of the unjust law? Simply, the bill states the following:

“except that artificially administered nutrition and hydration must be provided unless, based on reasonable medical judgment, providing artificially administered nutrition and hydration would: 1) Hasten the patient’s death; 2) Seriously exacerbate other major medical problems not outweighed by the benefit of the provision of the treatment; 3) Result in substantial irremediable physical pain, suffering, or discomfort not outweighed by the benefit of the provision of the treatment; 4) Be medically ineffective; or 5) Be contrary to the patient’s clearly stated desire not to receive artificially administered nutrition or hydration” (see HB 3074, introduced version, pg. 9, lines 18-27 through pg. 10, lines 1-4).

This simple provision recognizes that the AANH cannot be forcibly removed, but rather should be considered ordinary care in the vast majority of circumstances.

Secondly, the law has the effect of moving the public toward a Culture of Life. As the law exists now it has the effect of letting those who make medical decisions to act in a most unjust way. The law, as the great teacher, has had the effect of essentially teaching the public that human life can be treated in an undignified manner by specifically starving and/or dehydrating a person to death for any reason. HB 3074 would rectify this injustice. By stating that there are only limited circumstances in which the AANH could be removed (for example, if the AANH would actually worsen the medical condition of the patient or even cause the death of the patient to happen more quickly) the law is, in its essence, stating that human life is to treated with dignity and provided with ordinary care that is congruent with his/her dignity. This, in turn, would help guide the public to have a greater appreciation for the person who is made in the image of God.

But a deeper question ought to be asked: is it immoral to oppose this legislation? While prudence plays a task in every legislative decision a legislator must make, it would seem that reason require that legislators and pro-life organizations ought to support and lobby such legislation. This author would agree. HB 3074 proposes a much needed step in reforming the current Texas law. Again, Dr. Harvey stresses the absolute need to pass this legislation, “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.” In essence, opposing this legislation would be immoral since it would allow for the evil of starving and dehydrating patients to continue.

It has been 12 years since the Texas Advanced Directives Act has seen any substantial reform and the pro-life organizations of Texas understand that it is in real need of it. HB 3074 is the vehicle in which a sorely needed provision of law can be changed in order to reflect the moral dictate that human life is sacred, even if it is a precarious state.

Joe Kral has been involved in the pro-life movement since he has been in college.  His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics.  From 1996-2003 he was the Legislative Director for Texas Right to Life.  During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life.  From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives.   In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas.  He currently serves as a voluntary legislative advisor to Texas Alliance for Life, is a member of the Fellowship of Catholic Scholars, taught as an adjunct professor of Theology at the University of St. Thomas, teaches as a Forward Toward Christian Ministry instructor for the Archdiocese of Galveston-Houston, is a member of the Knights of Columbus, and is doing doctoral studies at Harrison Middleton University where he is specializing in the ethical and legal theory of St. Thomas Aquinas. He has been married to his wife, Melissa, since 2004 and they have 2 children together. They attend St. Theresa’s Catholic Church in Sugar Land.
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