Midterm 2 Flashcards
problems with viability criteria
moving target, b/c as tech improves it can change, + viability has different percentage changes at different times
substantive due process
allows courts to protect fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the Constitution
comes from 5th and 14th amendment due process clauses
therapeutic abortion statutes
abortion criminal except in certain cases (rape, incest, if necessary to save life or health of mother, fetal anomaly); sometimes includes very early pregnancy abortions
what are the guidelines for what makes an abortion regulation acceptable?
if it does not unduly burden a mother’s ability to get an abortion pre-viability; cannot present substantial obstacles
what problem does ambiguity of the undue burden analysis cause?
invitation for states to impose regulations and test them in court
partial birth abortion
removing feet through birth canal; collapse skull and remove embryo
alternatives to partial birth abortion & problem
more dangerous to mother
- go into uterus with needle, kill embryo with rejection and then remove
- surgically dismantle
Pierce v Society of Sisters
can’t restrict people’s ability to send their kids to private schools after regular school
Whole Women’s Health v. Hellerstedt (2016)
Texas cannot place restrictions on delivery of abortion services that create an undue burden/don’t advance Texas’s legitimate interest in protecting women’s health; law requiring doctors who perform abortions to have ‘admitting privileges’ at local hospital and requiring clinics to have costly hospital-grade facilities violate woman’s right to abortion
proposals from Firestorm pamphlet
spurred by Roe
- lobby for requirements of special abortion insurance for doctors & then lobby insurane companies to not sell it
- shame providers and insurance companies publicly
other possible strategy not used by courts to justify abortion
equal protection: not having abortions disproportionately negatively affects women
Stenberg v Carhart
Nebraska law that made performing partial birth abortion illegal, w/o regard for health of mother
Decision: violated due process
Conflicts w/Gonzales v Carhart (decided later, in 2007), possibly just b/c one justice was different
Hyde Amendment (1977)
bans federal money from being used for abortion coverage for women insured by Medicaid; similar restrictions in other federal programs to deny abortion care/coverage to women with disabilities, Native Americans, prison inmates, poor women in DC, military personnel, federal employees (states may use their own nonfederal funds to fund abortions through Medicaid)
3 aspects Scalia disagreed w/ regarding distinction between suicide & refusing treatment in Cruzan
- that she is permanently incapacitated/in pain
- that she would bring on death not by affirmative act but by declining treatment
- violation of bodily integrity
but suicide is not allowed even if miserable/having different wishes/etc
Scalia’s complaint about action/inaction
many types of inaction still seem impermissible, e.g. drowning yourself vs. lying on the beach waiting for high tide to drown you; distinction seems to be about abstaining from ordinary care vs. excessive measures, can’t be decided by legislature
explanation for why Cruzan differed from Glucksberg
right to suicide has never enjoyed the same legal protection in our history as the right to refuse treatment
4 state interests that may weigh against patient’s right to refuse lifesaving treatment
- state interest in preserving life
- preventing suicide
- protecting 3rd parties (such as minor children)
- maintaining ethical integrity of medical profession
How was Quinlan’s condition distinguished from that of Saikewicz?
while Quinlan was once competent, Saikewicz never was, so the fact that most people in his situation might choose treatment cannot bear on the interpretation of the decision he may have made
Georgetown University case 1965
Jehovah’s Witness objected to getting a blood transfusion that would save her life; doctors forced it, court said it was allowed b/c she can’t ask med professionals to go against their training/duty to save lives
later decided this was not okay: patients can refuse treatment
Steps to decide whether someone can have life-sustaining treatment withdrawn or not
- if patient is competent, do what patient says (decided by doctor)
if NOT competent:
- check for proxy or advanced directive
- if neither, gather ev for what patient would have wanted; can allow family to make substitute judgments
- if no evidence, decide on basis of best interest of patient (usually continue life support)
2 ways a competent patient can direct end of life care
- advanced directory
2. appoint a legal proxy w/durable power of attorney
2 problems with advanced directives
- sometimes not clear; e.g. if you said you wouldn’t want to normally be resuscitated, but during a random surgery you go into cardiac arrest, should the doctors not save you? definition of ‘life sustaining treatment’ can be ambiguous
- someone must know you have the advanced directive and have access to it
Connecticut attempted to solve problems with advanced directives
medical order for life sustaining treatment; worked out in conversation w/doctor when someone is on the road to death, goes into medical information and entered into medical record
What body decides details governing end of life decisions? (e.g. what constitutes compelling evidence, how to appoint a proxy, who can make substituted judgments…)
state governments
What usually happens if a family asks a doctor to keep treating a patient and the doctor refuses?
often the family files a malpractice case, but the doctor usually wins
What was the controversy originating in Texas law regarding conflicting family vs. doctor’s interests in continuing care?
if families can pay to continue the care of the medical team, the team can continue treatment even if they otherwise would have refused; well off families disproportionately benefit
Death with Dignity Act
1994 Oregon law passed by ballot initiative
Any terminally ill OR resident can request lethal prescription from doctor (not euthanasia); many regulations
4 regulations on assisted suicide in Death with Dignity Act
- must be terminally ill (fewer than 6 months to live)
- patient must initiate conversation about it twice, 15 days apart (desire persistent over time; doctor judges if patient speaking from place of clinical depression or not)
- doctor doesn’t have to do it, but then must refer to other doctor
- request must be witnessed by more than one doctor
2 problems with assisted suicide regulations
- difficulty in predicting who is genuinely terminally ill; imprecise technology
- difficulty in determining difference between clinical depression and normal depression about life ending
Terri Schiavo case
BG: persistent vegetative state; husband/guardian argued she wouldn’t have wanted life support, parents challenged.
Dec: ultimately removed; husband’s evidence more compelling
What justification could the federal government use to regulate issues like substituted judgments?
can basically regulate anything that touches interstate commerce (e.g. ventilators)
Why doesn’t the federal government pass laws that regulate things like the standards for substituted judgments?
Long precedent of leaving medical standards up to states
Olly’s barbecue
in GA; said Congress can’t ban segregation at this barbecue (spaces of public accommodations) because no one has ever worked or eaten there who wasn’t from Georgia, so it isn’t interstate. SCOTUS said stuff like ketchup and napkins aren’t from Georgia, so they can regulate
2 possible constitutional justifications for assisted suicide
- equal protection
2. substantive due process (privacy, bodily autonomy)
in re AC (1987, DC Court of Appeals)
BG: C-section performed on AC (who had terminal cancer) w/o informed consent in order to save fetus; she initially gave IC, but later gave ambiguous answer
Decision: judge who allowed the C section failed to properly balance Carder’s rights to not consent vs. interests of the state; in virtually all cases, patient’s desire must be adhered to if deemed competent
differences in international laws regarding PAS
- some don’t require you to be terminally ill (“irremediable suffering”)
- some allow PAS for mental health reasons
- more allow euthanasia
- in Switzerland, euthanasia is only banned if it’s related to financial gain
2 problems with Glucksberg decision
- backward looking: doesn’t fit with Roe analysis
- forward looking: decisions like Lawrence v. Texas relied on privacy rights that don’t seem grounded necessarily in legal tradition, rely on expansive substantive due process
Gonzales v Oregon (2006, SCOTUS)
ruled that US Attorney General cannot enforce federal Controlled Substances Act against physicians who prescribe drugs, in accordance with OR law, to terminally ill patients seeking to end their lives (fed govt can regulate drugs, but AG cannot overrule state law on appropriate use of medications)
