Antichoice at the End of Life

Ann Neuman

The defeat of increased funding for end of life care should serve as a warning to all those concerned about autonomy over their own healthcare choices.

This piece is cross-posted in cooperation with The Nation.

Earlier this month, a regulation to provide Medicare coverage for advance care planning counseling—that is, offer reimbursement to doctors for time spent talking to patients about end-of-life care—was abandoned… for the second time.

Section 1233 of the Patient Protection and Affordable Care Act (PPACA) died a first death in the summer of 2009 in the debate over healthcare reform, during which healthcare opponents characterized the provision as a call for government-run “death panels.” Former Lieutenant Governor of New York State Betsy McCaughey, who consulted with Philip Morris while working on the hit piece against the Clinton healthcare plan “No Exit,” coined the “death panel” moniker; Sarah Palin popularized it. Then John Boehner, at the time the House minority leader, claimed that the provision would lead the country down “a treacherous path toward government-encouraged euthanasia.” Fox & Friends repeated the “death panel” meme dozens of times, and soon, the provision was stripped from the healthcare bill.

But last November, the Obama administration quietly inserted it into Medicare’s annual regulations—after the customary public review period. The New York Times‘s Robert Pear broke the news on Christmas Day that end-of-life counseling was to be covered by Medicare.  Immediately, right-wing think tanks, some with legal cases against the healthcare bill, leveraged the “death panel” rhetoric to bolster their arguments.  While “prolife” blogs spread the news alongside accusations that the regulation would further endanger the “sanctity of life,” much of mainstream media pushed back at reemergence of what Politifact called “the biggest lie of 2009.”  On Fox, guest host Tucker Carlson said that the regulation would convince Americans to “forego aggressive life-sustaining treatment,” but was challenged by another correspondent. Nonetheless, the Obama administration, blaming procedural irregularities, dropped the regulation only three days after it went into effect, but it’s clear political considerations played a role.

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Opponents of the healthcare bill got the White House running scared by spreading the “death panel” meme from conservative legal groups to Fox to right-wing blogs and back again, both after the Affordable Care Act passed and after Christmas. But they weren’t building a messaging chain from scratch. Instead, they worked the same network that has been mobilized since the 1970s to fight legal abortion. For the past decade, those same religious organizations have begun working to limit treatment choices for those facing the end of their lives, a development that increasingly impedes meaningful healthcare, and resigns countless elders—including millions of aging Baby Boomers—to “healthcare” that does little for, or even damage to, their quality of life.

A host of anti-abortion groups denounced the end of life counseling regulation, including Operation Rescue‘s Troy Newman and Janice Crouse of the Beverly LaHaye Institute at Concerned Women for America. Family Research Council‘s director of Congressional affairs, David Christensen, told The Christian Science Monitor, “We’re concerned this [the regulation] could be misused, especially in a state like Oregon that sees mercy killing as a legitimate medical service.” Three days after Pear’s story, Mathew Staver, chairman of Liberty University’s Liberty Counsel, a conservative legal organization (think “Choose Life” license plates case), said, “When you remove the sanctity of life from the equation and place health care under the control of government bureaucrats, you end up with increased costs, decreased care, and death panels.” Judie Brown, the president of American Life League, gave a succinct summary of the “prolife” conflation of end of life care with abortion: “Nothing good can come of this. This will affect everybody’s parents and grandparents and preborn babies, and it will not affect anybody for the good.”

About 80 percent of Americans wish to die at home, yet 80 percent die in institutions, because the default mode of medical care in the United States is to “do everything,” as Thaddeus Pope, law professor at Widener University, describes it. For the past fifty years, medicine has focused on curing illnesses and ailments but not on guiding patients through the dying process. So terminal patients are now frequently given rounds of treatment long after they’ve been found ineffective simply because doctors fear “giving up.” Aggressive intervention enables doctors and patients to deny the inevitability of death and prevents them from planning for the process of dying.

Particularly for patients over 65, aggressive treatment and their side effects can be more debilitating than what they’re intended to cure. From CPR (reliable statistics don’t exist, but most studies suggest the procedure saves lives less than a quarter of the times it is performed—and often breaks bones) to artificial nutrition and hydration (which employs a stomach tube for feeding even though loss of hunger and the inability to ingest are natural symptoms of the dying process), treatments that don’t actually improve patients’ lives but provide a significant revenue to doctors, hospitals and medical manufacturers are common practice in our medical system. Yet patients often don’t know that they can refuse treatments or decide where to die. Providing insurance coverage for discussions about end-of-life care would help restore choice to those facing a path of unwanted treatment and would reduce the cost of healthcare. It’s a win-win prospect, but that’s the rub: Republicans and their “prolife” allies have characterized any attempts to reform “aggressive care” as cost-cutting attacks on the most vulnerable.

The terms themselves are confusing. “End-of-life care” is often referred to as advance care planning, the process by which a patient talks to their doctor and family about how they wish to die and decides which medical interventions, like CPR, they do or do not want. The advance care planning the Obama administration attempted to include in Medicare is entirely distinct from Death with Dignity (DWD), though both come from a commitment to patient choice and autonomy. State “Death with Dignity” laws allow a patient who has been diagnosed with less than six months to live to ask for lethal medicine from a doctor who cannot be prosecuted. In the United States proponents prefer the terms DWD or aid in dying, while opponents refer to “euthanasia.” Advocates for the availability of good end-of-life care and advance care planning—there is no umbrella term—argue that patients have a right to be fully informed of care options and to accept or deny treatments. End of life counseling simply involves informing patients of their care options (which, if the patient lives in Oregon, Washington or Montana includes Death with Dignity) and helping them to plan accordingly. Since the death of Terri Schiavo in 2005, antichoice groups, the Catholic Church and their denominational and legal allies have raised alarm about “euthanasia” on their well-organized and -funded platform.

At the Pennsylvania Pro-Life Federation annual meeting in 2009, Bobby Schindler, brother of Terri Schiavo and head of the Terri Schindler Schiavo Foundation (recently renamed the Terri Schiavo Life & Hope Network), spoke alongside other anti-abortion luminaries like former Kansas Attorney General  Phill Kline.  Schindler has styled himself as an advocate for the disabled, reflecting a trend among “prolife” groups who have expanded their definition of “innocent life” to include the disabled, elders, the dying, as well as the “unborn” (or “pre-born,” as anti-abortion groups have begun to say).  “Saying Terri was in a Persistent Vegetative State [a medical diagnosis for minimal or no brain function] was dehumanizing,” Schindler told the crowd, “like not using baby for the unborn. We’ve been primarily concerned with abortion but how many are being killed on a daily basis by euthanasia?”

The Pennsylvania Pro-Life Federation is far from the only antichoice group now also fighting patients’ choice at the end of life. The National Right to Life Committee (NRLC) has taken up opposition to health care reform and advance care planning with abandon; their Robert Powell Center for Medical Ethics, named for the disabled early vice president of NRLC, “serves as NRLC’s arm in fighting to protect the vulnerable born from both direct killing and denial of lifesaving medical treatment, food and fluids.” They’ve maintained a blog about end-of-life issues and healthcare reform since June of 2009. These groups have long held that the legalization of abortion has cheapened the value of life; in their eyes Death with Dignity does the same, and legitimizes their fear that the United States is on a “slippery slope” toward state-sanctioned killing of “innocent life” among us.

A collective American reticence to frankly discuss death enables organizations like the Terri Schiavo Life & Hope Network and NRLC to misinform the public about existing government programs like hospice, Medicare and other legal tools for the elderly, like advanced directives and medical proxies, which can provide more control over how they age and die. Combined with a paternalistic medical profession that’s only recently begun training new doctors on how to talk to patients about how to plan their end-of-life care and a Republican party dependent on the support of antichoice groups, “pro-life” groups have been able to fundamentally shape state and federal legislation.

Of course, even in the absence of this regulation, doctors and patients will continue to initiate conversations about end-of-life care—but not frequently enough to save uninformed seniors and terminal patients from painful and pointless treatments they don’t want. And not often enough to stem the crisis in healthcare financing aging Baby Boomers will bring.

When advocates of the Stupak-Pitts amendment to severely restrict abortion coverage took healthcare reform hostage, advocates for women’s health were reminded of the outsized ability “prolife” groups have to determine healthcare policy. The defeat of increased funding for end of life care should serve as a warning to all those concerned about autonomy over their own healthcare choices.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.