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Posted on July 27, 2020 at 8:56 AM

On Friday, the Texas Court of Appeals issued such a lengthy opinion on the constitutionality of TADA that one might think (like the dissenting justice) that the question has now been definitively answered. But it has not.

The appeals court ruled on only the propriety of a temporary restraining order pending trial. The case may now proceed to trial in Tarrant County. 

The appeals court framed the question: “Does the committee review process in TADA 166.046 provide sufficient procedural due process to authorize involuntary passive euthanasia?” The court answered “no.”

The court’s analysis proceeds in three stages, because procedural due process is owed only when state action deprives an individual of a constitutionally protected right. 

Here, there were two rights at issue: (1) Tinslee’s right to life and (2) her mother’s right to make decisions on behalf of Tinslee.

There was state action because only the state can override parental decision making for minor patients. The court also describes nearly a dozen cases in which Texas physicians or nurses were convicted of homicide. The court notes that these individuals engaged in the same conduct as Cook Children’s planned: they deprived a patient of her life without consent. Why is there conduct criminal, yet Cook Children’s permitted? Because of state action.

Stage 3
The court notes that TADA and the review process in this case was deficient for at least three reasons.
(1) The hospital did not afford adequate notice of the review committee.
(2) The hospital did not afford adequate opportunity to participate in the review. 
(3) The ethics committee lacked ascertainable standards for determining when treatment is medically appropriate.

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