Law students in this fall’s Bioethics course here at Regent Law were asked to consider themselves as an attorney in State X where “because of your interest in bioethics, the governor has asked you to serve on a 10-person ‘Healthcare Allocation Board.’ This Board will make decisions in individual cases regarding whether limited state healthcare funds (Medicare, Medicaid, and other programs) will be available for certain procedures for certain patients. For example, the legislative history of the state statute creating this Board suggests that the legislature thought it made no economic/policy sense to spend limited state funds on an expensive hip-replacement operation for a 90-year old man with terminal cancer, or to fund a heart transplant for an elderly woman already on kidney dialysis. Would you agree to serve on such a Board? If not, why not? If yes, what philosophical/ethical/moral legal approach would you bring to your decisionmaking?”
Here
is a wise and thorough response from 2L law student Anna Hartis:
I
would agree to serve on the Healthcare Allocation Board (HAB) because I would
want to be an advocate for “the least of these.” Attorney David Gibbs III of
the National Center for Life and Liberty (NCLL) said that based on Matthew
25:40, a Christian should help those who can’t do anything for him or her in
return. The NCLL, Fighting for Dear Life, YouTube (Feb. 8, 2013) https://www.youtube.com/watch?v=ErbaL4edkZU/.
Serving on the HAB would be helping those who can’t help me or give me anything
in return because the patients whom the HAB appears to be designed to serve are
physically weak and are receiving state funding for their medical care probably
because they can’t afford to pay for the medical care themselves.
The legal approach that I would bring to my decision-making would
be another step from Justice Scalia’s concurrence in Cruzan v.
Director, Missouri Health Department. In Cruzan, the late
Justice Scalia concurred that pain, incapacity, inaction, or action mean
nothing as to whether one ‘s life should be preserved. Barry R. Furrow, et AL., Cruzan v. Director, Missouri Health Department in Making Health Care Decisions About
Death and Dying: The Constitutional Foundation in Bioethics: Health Care Law and Ethics, pp.
325-26 (West Academic
Publishing, 8th ed.,
Aug. 06, 2018) (citing Cruzan
v. Director, Missouri Health Department, 497 U.S. 261 (1990)). This implies that pain,
incapacity, inaction, or action means nothing as to the value of one’s life.
Therefore, an individual’s pain, incapacity, inaction, or action should mean
nothing as to whether the government should spend money on providing certain
medical care to an individual.
The philosophical approach that I would bring to my
decision-making would be Plato’s Allegory of the Cave in which prisoners
believed that shadows on the wall of a cave they were in were entities of
themselves when the shadows were really just reflections of their own bodies.
Katherine Hurst, (last accessed Nov. 5, 2021) Philosophy 101: The Basic
Theories You Should Know: Plato’s Allegory of the Cave, https://www.thelawofattraction.com/philosophy-101-basic-theories-know/.
Plato’s lesson from this allegory was that we can sometimes have an inaccurate
perception of things. Id. I would use this lesson to say that
just because an individual with physical challenges or in a vegetative state
may appear to not be able to feel or know anything doesn’t necessarily mean
that the individual really can’t feel or know anything.
The ethical approach that I would bring to my decision-making
would be beneficence. Beneficence says that what is best for each person should
be done. Barry R. Furrow, et AL., No. 2, Notes
and Questions in Cruzan
v. Director, Missouri Health Department in Making Health Care Decisions About Death and
Dying: The Constitutional Foundation in Bioethics:
Health Care Law and Ethics, p. 331 (West Academic Publishing, 8th ed., Aug. 06, 2018). Biblical moral
approaches show what is best for each person.
The biblical moral approaches that I would bring to my
decision-making would be that, regardless of age, all human beings are equally
deserving and worthy and that God wants to show His power through people who
have physical challenges. I would base this on these verses: (1) Genesis 1:27,
(2) Isaiah 46:4, (3) Leviticus 19:32, and (4) John 9:3. Genesis 1:27 says that
God created both men and women in His own image. That people are created by God
means that, out of reverence for God, people should treat each other how God
would want them to treat each other.
Ephesians 5:1 says to follow God’s example. Isaiah 46:4 says that
God’s care for elderly people is equal to His care for middle-aged people and
young people. Thus, to follow God’s example, at minimum we should treat elderly
people just as well as we treat middle aged and young people.
Not only should we treat elderly people equally to other age
groups but also we should honor elderly people because Leviticus 19:32 says to
do so. In addition to honoring elderly people, we should honor people with
physical challenges. John 9:3 indicates that God likes to show His power
through people who have physical challenges.
Even if one or more physical challenges puts an individual in a
vegetive state, we should still do at least as much for that individual as we
would if that individual was not in a vegetative state. 2 Timothy 2:19-21
suggests that people are God’s vessels that He uses. A vessel doesn’t do
anything for itself or by itself. A vessel has no meaning, worth, or use unless
and until someone puts something else in it or pours something else out of it.
Like a vessel, the worth, meaning, or use of a human being doesn’t come from
what he or she can do for or by himself or herself; the worth meaning, and use of
a human being comes only from what God can do with, through, and to him or her.
For these reasons, whether an individual should receive certain
medical care shouldn’t depend on what he or she can do for or by himself or
herself; it depends on what God can do with, through, and to him or her, which
is anything. Additionally, no matter how long an individual has to live,
if an individual can improve his or her physical abilities, then he or she
should do so. Ecclesiastes 3:12 says to enjoy life as long as possible. 1
Corinthians 7:21 says not to be overly worried about one’s situation in life,
but if one can change it for the better, then one should do so. Thus, no matter
how long an individual has to live, that individual should be able to receive
any medical intervention possible to improve his or her quality of life.
In conclusion, in light of these approaches, it would make sense
for the 90-year-old man with terminal cancer to receive the hip replacement so
that he can enjoy his time left on earth as much as he can, and it would make
sense for the elderly woman to receive a heart transplant even though she is on
kidney dialysis so that she can live as long and as well as she can. By funding
medical care for these elderly unhealthy people, the HAB would be caring for
“the least of these” just as Jesus said to do and as Attorney Gibbs did for
Terry Schiavo by representing her and her family.
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