Texas Attorney General Ken Paxton is taking extraordinary steps this week to defend Texans’ constitutional rights to life and due process.

At issue is the Texas Advance Directives Act, a state law that allows Texas hospitals to pull the plug on patients who are receiving life-sustaining care. Paxton’s office this week filed an amicus brief in a Houston District Court on behalf of the State of Texas arguing the law fails to afford patients due process before their lives are ended and therefore violates the United States and Texas constitutions.

“[The Texas Advance Directives Act] badly fails the due process test,” argues the Attorney General. “The statute leads to the denial of a constitutionally protected interest – the right to life and the right to determine one’s medical treatment. And it does so through woefully insufficient procedures – [The Texas Advance Directives Act] not only denies patients sufficient notice and opportunity to be heard, it does not even afford patients with a neutral arbiter to decide their fate.”

The underlying case stems from the decision of Houston Methodist Hospital to deny care to Chris Dunn, a terminally ill but conscious patient at the hospital. Dunn made national news in early December 2015 when a video taken by his lawyer showed him conscious and literally praying for continued treatment.

The hospital used the provisions of the Advance Directives Act to attempt to end Dunn’s life after ten days of treatment. The hospital labeled additional care “futile” and its decision was upheld by its ethics committee, a group composed of doctors and others employed by the hospital.

However, attorneys affiliated with Texas Right to Life who represented Dunn and his family filed a lawsuit against the hospital causing them to back down. Life-sustaining care continued and Dunn lived almost two weeks past the arbitrary date chosen by the hospital, passing away just before Christmas. His family has continued to fight against the Texas Advance Directives Act since Dunn’s passing.

Wesley J. Smith of National Review praised Paxton’s brief. “For the sake of vulnerable patients and to stop the futile care train in its tracks, let’s hope the court takes the AG’s friendly advice,” Smith wrote.

In recent years, the Texas Advance Directives Act has been a point of friction in the Texas Legislature between pro-life organizations and medical industry special interests. On one side, Texas Right to Life and most major pro-life organizations have argued that the law is unconstitutional, and called for it to be repealed. On the other side, the Texas Medical Association, Texas Hospital Association, and smaller pro-life groups including Texas Alliance for Life have worked to make minor tweaks to the law, such as extending the ten-day deadline to fourteen days.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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