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Panels of Death

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They told me if they passed Barack HUSSEIN Obama’s Communist Health Care Act that there would eventually be panels to make arbitrary decisions about whether people should live or die, and they were right!

When Elizabeth Weller’s water broke during the 18th week of her pregnancy, the prognosis was bleak: With almost no amniotic fluid left, the fetus could not survive. If Weller did not terminate immediately, she would be at risk of a potentially lethal uterine infection. She requested an abortion, but the hospital’s ethics committee refused. The committee feared that if doctors terminated Weller’s pregnancy before she was actively dying, they would face liability under Texas’ six-week abortion ban. So the committee forced her to wait until she had a high fever and “foul” discharge—symptoms of a serious infection in her uterus—to terminate.

Weller’s story, documented by Carrie Feibel in a wrenching NPR report, reflects a growing crisis in a post–Roe v. Wade America. Many states have banned or severely restricted abortion since the Supreme Court overturned Roe on June 24, enacting laws with extremely vague and narrow exceptions for the life of the mother. Health care providers have legitimate concerns that they will face civil and criminal liability if they terminate a pregnancy under any circumstances. They worry that judges, juries, and prosecutors will disagree that the patient had a true medical emergency. And so the decision shifts from the patient to the hospital, which frequently places these delicate considerations in the hands of ethics committees.

American hospitals, especially those affiliated with universities, began to establish these committees in the 1960s. Christine Mitchell, president of the Association of Bioethics Program Directors and executive director of Harvard Medical School’s Center of Bioethics, told Slate that in their early days, the panels primarily discussed the ethical quandaries regarding technological advances and end-of-life care. The health care system was developing tools to keep patients alive in a persistent vegetative state, raising difficult questions about when a family member could refuse death-prolonging treatment on their behalf. As resulting conflicts were litigated in the courts, hospitals wanted their own internal experts to help make the best decisions for patients.

Today, Mitchell said, hospital ethics committees consult with medical staff on a wide range of issues. They typically include physicians, nurses, community members, hospital chaplains, clinical ethicists—and, often, attorneys. Their work goes beyond ethics consultation: Committees also develop written policies (like informed consent) and education, for the hospital and the broader community, about medical ethics. They do still take on end-of-life disputes, too, and a Texas law requires the state’s hospitals to create panels for that very purpose.

After Roe’s fall, ethics committees are taking on a new responsibility: determining whether a pregnant patient suffering a medical emergency may lawfully obtain an abortion. This task is actually a throwback to the 1960s and early 1970s, when states required hospitals to use “abortion committees” that decdied when a pregnancy was dangerous enough to merit termination. The Supreme Court struck down those laws in a companion case to Roe, finding them “unduly restrictive of the patient’s rights and needs.” That decision, of course, has now been overturned. So, in 2022, committees formed for different purposes are suddenly undertaking a job that had been deemed unconstitutional since 1973: giving an up-or-down vote on an emergency abortion.

As Douglas said in his concurrence in Bolton about taking the abortion decision away from women and effectively delegating it to the arbitrary whims of panels of other doctors and how it related to what even in 1973 was a decades-long tradition of privacy and autonomy cases:

The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known. He is entitled to procedural due process before professional disciplinary sanctions may be imposed.  Crucial here, however, is state-imposed control over the medical decision whether pregnancy should be interrupted. The good faith decision of the patient’s chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.

The right to seek advice on one’s health and the right to place reliance on the physician of one’s choice are basic to Fourteenth Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or controlled only by discretely drawn legislation that preserves the “liberty” and regulates only those phases of the problem of compelling legislative concern. The imposition by the State of group controls over the physician-patient relationship is not made on any medical procedure apart from abortion, no matter how dangerous the medical step may be. The oversight imposed on the physician and patient in abortion cases denies them their “liberty,” viz., their right of privacy, without any compelling, discernible state interest.

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