The Unconstitutional Medical Futility Provision of the Texas Advance Directives Act
Dying for Due Process: The Unconstitutional Medical Futility Provision of the Texas Advance Directives Act
Nora O’Callaghan, 60 Baylor L. Rev. 527 (2008)
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However, hospitals and doctors should be aware that the “safe harbor” of legal immunity that Texas offers as an incentive to doctors who make use of the .046 procedure is not as safe as it might appear. This Article argues that a court will likely strike down the statute as a violation of the procedural due process protections of the Fourteenth Amendment, should an appropriate case come before the court. Such a case, in the clearest manner, would involve a patient being subjected to the procedure by doctors at a public hospital where state action makes a constitutional claim easiest to raise. In a related article, I also argue that patients have a colorable claim that a court should declare an ethics committee at a private hospital involved in an .046 procedure to be “state actors” who are also required to comply with constitutional guarantees.