The Anti-Life 10-Day Rule is Better, but Not Yet Completely Fixed

The most important Pro-Life outcome of the Regular Session of the 88th Texas Legislature is House Bill 3162 by Representative Stephanie Klick (R – Fort Worth) reforming the anti-Life 10-Day Rule of the Texas Advance Directives Act (TADA). Texas Right to Life is one of few organizations advocating on this topic that also works directly with patients and families victimized by this law, and we have seen firsthand the immeasurable harm that it causes to families fighting for their loved ones’ lives.

Under the 10-Day Rule, a hospital in Texas can unilaterally remove a patient’s life-sustaining treatment with only 10-days’ notice and with complete immunity. Patients could actively be requesting the treatment to continue, it could be stipulated in their advanced directive that they wanted the treatment to continue, and their family could be requesting the treatment to continue. However, none of this could override the hospital’s power to unilaterally withdraw treatment. The law does not include an appeals process or reporting, so we can’t know definitively how frequently this is occurring in Texas.

After two decades of little progress, we were able to take these significant, yet incremental, steps with HB 3162:

Extending the countdown from 10 days to 25 days (prompting the name change to the “25-Day Rule”)
Prohibiting this law from being used based on “quality-of-life” discrimination
Protecting competent patients from the countdown
Requiring that hospitals perform procedures necessary to facilitate a transfer before the countdown may begin
Reporting on the use of this process.

This law will take effect on September 1, 2023. We applaud Representative Klick and her staff for their diligent work to pass this reform legislation.

But Pro-Life Texans are by no means satisfied while the countdown remains looming over vulnerable patients. HB 3162 makes great strides in making the broken TADA process more humane and we celebrate its passage, but it does not address some of the root problems of the law that deny patients their human dignity. We will continue working to incrementally reform the law and fix these root problems until patients and their families have their medical decisions fully respected and honored.

First, we need to eliminate the countdown altogether. While a longer countdown will provide patients more time to find a transfer to a facility that will honor their Right to Life, the fact that there remains any sort of countdown on a patient’s life is problematic. When there is a time limit placed on the patient’s life, it disincentivizes the family and the hospital working together to find a transfer to another facility or physician, but rather encourages the hospital to simply run out the clock to remove treatment, thereby hastening the patient’s death.

However, in states, such as New York, where hospitals are required to treat patients until a transfer is secured, we see that transfers are actually encouraged instead of pitting the hospital against the life of the patient. And in such states, this law does not bankrupt the hospitals or break the healthcare system.

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Second, we need to improve language that protects patients with disabilities. While HB 3162 included language addressing disabilities and their role in the TADA process, there is need for further clarification and strengthening that disability should not be a factor in such consideration. A patient’s disability does not determine his or her value, worth, or right to live, and the law ought to acknowledge that. Just as we have protections for babies who are diagnosed with disabilities while in the womb, we need to have legal protections for born people with disabilities when their lives are threatened.

Third, we need to guarantee impartial review by a judge. One of the uniquely disturbing parts of the Texas law is that there is no way to appeal the decision of the hospital’s ethics committee, and there is no other means of legal recourse. The fact that the ethics committee’s decision is binding rather than advisory is almost completely unique to our state, and it puts Texans in particular danger if they are ever hospitalized. Judicial review would mitigate such concerns.

Patients in Texas will soon feel the positive effects of HB 3162. While we celebrate the passage of this law as a great success, it is incremental. Vulnerable patients need us to continue standing with them to fight for their right to life.