Midterm 2

Question 1

problems with viability criteria

Answer 1

moving target, b/c as tech improves it can change, + viability has different percentage changes at different times

Question 2

substantive due process

Answer 2

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

Question 3

therapeutic abortion statutes

Answer 3

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

Question 4

what are the guidelines for what makes an abortion regulation acceptable?

Answer 4

if it does not unduly burden a mother’s ability to get an abortion pre-viability; cannot present substantial obstacles

Question 5

what problem does ambiguity of the undue burden analysis cause?

Answer 5

invitation for states to impose regulations and test them in court

Question 6

partial birth abortion

Answer 6

removing feet through birth canal; collapse skull and remove embryo

Question 7

alternatives to partial birth abortion & problem

Answer 7

more dangerous to mother

1. go into uterus with needle, kill embryo with rejection and then remove
2. surgically dismantle

Question 8

Pierce v Society of Sisters

Answer 8

can’t restrict people’s ability to send their kids to private schools after regular school

Question 9

Whole Women’s Health v. Hellerstedt (2016)

Answer 9

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

Question 10

proposals from Firestorm pamphlet

Answer 10

spurred by Roe

1. lobby for requirements of special abortion insurance for doctors & then lobby insurane companies to not sell it
2. shame providers and insurance companies publicly

Question 11

other possible strategy not used by courts to justify abortion

Answer 11

equal protection: not having abortions disproportionately negatively affects women

Question 12

Stenberg v Carhart

Answer 12

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

Question 13

Hyde Amendment (1977)

Answer 13

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)

Question 14

3 aspects Scalia disagreed w/ regarding distinction between suicide & refusing treatment in Cruzan

Answer 14

1. that she is permanently incapacitated/in pain
2. that she would bring on death not by affirmative act but by declining treatment
3. violation of bodily integrity

but suicide is not allowed even if miserable/having different wishes/etc

Question 15

Scalia’s complaint about action/inaction

Answer 15

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

Question 16

explanation for why Cruzan differed from Glucksberg

Answer 16

right to suicide has never enjoyed the same legal protection in our history as the right to refuse treatment

Question 17

4 state interests that may weigh against patient’s right to refuse lifesaving treatment

Answer 17

1. state interest in preserving life
2. preventing suicide
3. protecting 3rd parties (such as minor children)
4. maintaining ethical integrity of medical profession

Question 18

How was Quinlan’s condition distinguished from that of Saikewicz?

Answer 18

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

Question 19

Georgetown University case 1965

Answer 19

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

Question 20

Steps to decide whether someone can have life-sustaining treatment withdrawn or not

Answer 20

1. if patient is competent, do what patient says (decided by doctor)

if NOT competent:

1. check for proxy or advanced directive
2. if neither, gather ev for what patient would have wanted; can allow family to make substitute judgments
3. if no evidence, decide on basis of best interest of patient (usually continue life support)

Question 21

2 ways a competent patient can direct end of life care

Answer 21

1. advanced directory

2. appoint a legal proxy w/durable power of attorney

Question 22

2 problems with advanced directives

Answer 22

1. 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
2. someone must know you have the advanced directive and have access to it

Question 23

Connecticut attempted to solve problems with advanced directives

Answer 23

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

Question 24

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…)

Answer 24

state governments

Question 25

What usually happens if a family asks a doctor to keep treating a patient and the doctor refuses?

Answer 25

often the family files a malpractice case, but the doctor usually wins

Question 26

What was the controversy originating in Texas law regarding conflicting family vs. doctor’s interests in continuing care?

Answer 26

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

Question 27

Death with Dignity Act

Answer 27

1994 Oregon law passed by ballot initiative

Any terminally ill OR resident can request lethal prescription from doctor (not euthanasia); many regulations

Question 28

4 regulations on assisted suicide in Death with Dignity Act

Answer 28

1. must be terminally ill (fewer than 6 months to live)
2. 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)
3. doctor doesn’t have to do it, but then must refer to other doctor
4. request must be witnessed by more than one doctor

Question 29

2 problems with assisted suicide regulations

Answer 29

1. difficulty in predicting who is genuinely terminally ill; imprecise technology
2. difficulty in determining difference between clinical depression and normal depression about life ending

Question 30

Terri Schiavo case

Answer 30

BG: persistent vegetative state; husband/guardian argued she wouldn’t have wanted life support, parents challenged.

Dec: ultimately removed; husband’s evidence more compelling

Question 31

What justification could the federal government use to regulate issues like substituted judgments?

Answer 31

can basically regulate anything that touches interstate commerce (e.g. ventilators)

Question 32

Why doesn’t the federal government pass laws that regulate things like the standards for substituted judgments?

Answer 32

Long precedent of leaving medical standards up to states

Question 33

Olly’s barbecue

Answer 33

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

Question 34

2 possible constitutional justifications for assisted suicide

Answer 34

1. equal protection

2. substantive due process (privacy, bodily autonomy)

Question 35

in re AC (1987, DC Court of Appeals)

Answer 35

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

Question 36

differences in international laws regarding PAS

Answer 36

1. some don’t require you to be terminally ill (“irremediable suffering”)
2. some allow PAS for mental health reasons
3. more allow euthanasia
4. in Switzerland, euthanasia is only banned if it’s related to financial gain

Question 37

2 problems with Glucksberg decision

Answer 37

1. backward looking: doesn’t fit with Roe analysis
2. 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

Question 38

Gonzales v Oregon (2006, SCOTUS)

Answer 38

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)