At the end of July, a broad alliance submitted a 28-page amicus brief on behalf of the defendant. The amici include:
- TEXAS ALLIANCE FOR LIFE
- TEXAS CATHOLIC CONFERENCE OF BISHOPS
- TEXAS BAPTIST CHRISTIAN LIFE COMMISSION
- TEXANS FOR LIFE COALITION
- COALITION OF TEXANS WITH DISABILITIES
- TEXAS ALLIANCE FOR PATIENT ACCESS
- TEXAS MEDICAL ASSOCIATION
- TEXAS OSTEOPATHIC MEDICAL ASSOCIATION
- TEXAS HOSPITAL ASSOCIATION
- LEADINGAGE TEXAS
I will make just two observations about the brief.
1. The amici argue that there is no state action, because clinician and hospital use of TADA is completely voluntary. They may but need not use TADA. On the other hand, the amici concede that similar process based approaches in other states “had little practical effect” because of the threat of liability. Consequently, they concede that TADA’s provision of safe harbor immunity really did change clinician and hospital behavior. Texas clinicians and hospitals would not withdraw life-sustaining treatment without consent BUT FOR the immunity conferred by TADA.
2. Since the 1970s, numerous appellate courts (e.g. Quinlan) have held that all sorts of medical treatment issues can and should be handled by hospital committees. But these judicial opinions are very clear that conflicts and disputes should still go to court. Since TADA authorizes hospital review committees to adjudicate life and death disputes, these committees are exercising a judicial function. That is state action sufficient to make constitutional requirements apply to private hospitals like Methodist Houston.