Friday, January 24, 2014

Texican Horror Story

There is a hearing today in the case of Marlise Munoz.  It shouldn't even be a legal issue for the hospital; there is precedent in Texas law for not providing "life support" for a corpse under the applicable law, even when the corpse is a pregnant woman.  What needs to be explained is why JPS refuses to declare Marlise Munoz brain dead, when she so clearly is:

The 33-year-old paramedic and mother of one from Fort Worth, Texas, apparently suffered a fatal pulmonary embolism in her home Nov. 26. She was found by her husband, Erick, who is also a paramedic, unconscious on their kitchen floor. She had lain there, not breathing, for some minutes. She was taken to nearby John Peter Smith Hospital, where doctors put her on ICU technologies, including a ventilator, and restored a heartbeat. But doctors soon determined that Munoz had suffered brain death, "irreversible cessation of all spontaneous brain function." She was dead. Her husband, accordingly, asked that all the machines be stopped.

The hospital staff refused. At the time, Munoz was 14 weeks pregnant. The hospital's position is that it has no choice but to maintain her body artificially. Texas law, hospital officials say, does not permit removing ICU technologies from a woman who is pregnant.
Brain dead, as Caplan and Pope point out, is the standard for "death" in all 50 states.  It is, of course, the reason the hospital has not declared Ms. Munoz "brain dead," because then there is no need for life-sustaining efforts, not even in Texas.  There is still one fact missing, the one reported by the Fort Worth Star-Telegram but not, so far as I can find, followed up anywhere else:

The hospital’s outside counsel is Neal Adams, who led the drive to end abortions at JPS in 1988 and is on the advisory board of the Northeast Tarrant Right-to-Life Educational Association, based in Euless. His firm mainly handles contracts for the hospital, while medical litigation is primarily handled by the Tarrant County District Attorney’s Office, Labbe said.

Yes, he's their contracts, not litigation, lawyer; but he led the drive to end abortions at this hospital.  He's also the campaign treasurer for a Tarrant County judge; so let us not doubt for a moment that Mr. Adams is a Very Influential Person in Tarrant County legal circles.  Or that there are some fanatics in JPS who think pregnancy survives even death.

The lawyers for Ms. Munoz have now revealed some information about the condition of the fetus:

The 22-week-old fetus’s lower extremities are deformed and it is impossible to determine its gender, the attorneys for the woman’s husband, Erick Muñoz, said in an emailed statement.

The fetus suffers from hydrocephalus [water on the brain]. It also appears that there are further abnormalities, including a possible heart problem, that cannot be specifically determined due to the immobile nature of Mrs. Muñoz’s deceased body,” the statement said.

The fetus, which was deprived of oxygen for “an indeterminate length of time, is gestating within a dead and deteriorating body as the horrified family looks on,” the attorneys said.
You can, if you wish, ignore the language about the horrified family; you cannot ignore the fact Ms. Munoz's body is "dead and deteriorating."  You can even ignore the condition of the fetus, if you choose.  What you cannot do is ignore the fact that Ms. Munoz is dead.

At what point do we play god with the dead?  The question has been around since Mary Shelley's Frankenstein, but the focus there was on the living, and the responsibility of Frankenstein (the creator) for his creature (it has no other name in the novel).  Now the question is:  what do the living owe the dead?  We can presume the fetus is gestating but, if I were the trial judge, I could not even do that.  It is possible to simulate life in Ms. Munoz' corpse with the aid of "life support" technology.  Is it any less likely that all that can be determined about the fetus is a similar mistake about life?  To keep a premature infant in a malfunctioning incubator would draw outrage from all the world; if we can morally justify treating Ms. Munoz' corpse as an incubator (and I think we cannot), can we do so with confidence that her body functions adequately for that purpose?

This case is a grotesque travesty of the law and of a human being.  If this is morally and legally justified, I see no reason to criminalize or otherwise object to any desecration of a corpse, because that is what is being done her.  Ms. Munoz is dead.  Her fetus has no greater claim on her corpse than society's interest in seeing that her corpse is not desecrated; and yet it is being forced to function even though we cannot say with certainty that is it functioning even for that purpose.  We would not allow a machine to be employed in this way if we couldn't be sure it was working; and yet we regard Ms. Munoz as less than that.

This is a horror story.


As I said, a horror story:

In an affidavit filed Thursday in court, Erick Munoz said little to him now is recognizable about Marlise. Her bones crack when her stiff limbs move. Her usual scent has been replaced by the "smell of death." And her once lively eyes have become "soulless."

"Over these past two months, nothing about my wife indicates she is alive," Erick Munoz said. "... What sits in front of me is a deteriorating body."

And even the hospital now admits the indisputable facts:

For the first time, John Peter Smith Hospital acknowledges that Marlise Munoz, who is being kept on a respirator under Texas law, has been brain dead since November 28 and that the "fetus gestating inside Mrs. Munoz is not viable," according to court documents released before a Friday hearing.

So, and I say this as a lawyer, what are they fighting about?  The hospital is represented by the Tarrant County District Attorney's office.  There is no higher criminal prosecution authority in the state of Texas (the Attorney General can only bring civil cases).  No one, not even the state of Texas, has a justiciable interest in this matter except the family of the deceased and Tarrant County, and Tarrant County isn't going to prosecute the hospital for turning off life support on a corpse, especially after admitting to the court that Ms. Munoz is dead and her fetus non-viable.  I understand the concept of a court order to protect the hospital; but protect it from who?

There is some very strange, very sad, and very savage politics going on behind this matter.  Erick Munoz has asked the court to declare this Texas statute unconstitutional.  It could be the hospital wants to avoid that outcome by ceding the factual ground and giving the court a reason not to go that far.  At this point, I hope the court declines that option and declares this travesty of a law the abomination it is.

No family needs to go through this again, in any of the 254 counties in Texas.

Apparently, even as I was writing the above, the judge ruled in favor of Erick Munoz, which seems to mean  the court decided the case on the facts before it, and didn't care to expand the scope of its ruling to any constitutional questions.  The lawyers of Munoz indicate they don't know that the hospital won't appeal, which would add a whole new level of reprehensible to this; but I don't think the hospital wants anything more to do with this matter.  The international attention they've gotten can't be appealing to them by now.

May Ms. Munoz, and her unborn child, finally rest in peace.


  1. It is horrific that a families grief can be turned into a political opportunity, but that's exactly what this has become. It is shameful that the courts and legislatures have allowed this to happen, for entirely political reasons.