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Seton Hall Unversity School of Law
Buck, Zack (Isaac)

Bioethics Isaac Buck– Fall 2012
What do we think the law should be, not necessarily what it is right now?
TOPICS: End of life, Organ donation, Right to die, Abortion, Sterilization
HYPO: In re guardianship of Mary Moe
Mary =
§  32 years old
§  Suffers from schizophrenia and bipolar mood disorder (has been hospitalized numerous times)
§  Is currently pregnant (for the third time)( but she now refuses obstetrical care and testing)
§  First pregnancy was terminated
§  Second pregnancy, gave birth to a boy (now in custody of her parents)
§  Between first and second pregnancy, had a psychotic break (while in college)
§  Believed people were staring at her and that she killed baby
§  States she is “very Catholic” and does not believe in abortion
§  Moe was asked if she wanted an abortion and she said “she wouldn’t do that”
§  Moe stated to judge that a previous child she had was a baby girl named Nancy
Mary’s parents =
§  Currently are raising Mary’s child (unclear who the father of child is)
§  State she is not an active Catholic
§  Believe it is in the best interest of Mary to terminate pregnancy
Doctors =
§  Testified that the drugs Moe takes for her mental disorders threaten the health of the fetus, but stopping the drugs would could put her at risk for “deeper madness”
Department of Mental Health filed petition, seeking parents to be appointed temporary guardians for purpose of consenting to an abortion
§  Judge found Moe incompetent to make a decision about abortion, appointed a guardian ad litem, who determined that Moe would not choose an abortion if competent
GAL Report findings: 
§  Moe suffered psychotic break while in college
§  Becomes agitated when talking about the terminated pregnancy
§  She denies she is now pregnant
§  Refuses obstetrical care and testing
Judge Harms of family court
¡  Judge:  if Moe was competent, she would opt for abortion in order to benefit from her medication
§  ordered Moe’s parents appointed co-guardians and Moe “coaxed, bribed, or even enticed … by ruse” into a hospital where she could be sedated and pregnancy terminated
§  Also ordered her sterilized at the same time “to avoid this painful situation from recurring in the future”
§  Concerned about future similar situations
Order was quickly appealed  (Jan. 17, 2012)
1)      Appeals say no to the sterilization
Sterilization = Major deprivation, incompetent person must be heard, must be given adequate notice, fair process; because lower court did not – reversed
2)      Abortion: just because she was incompetent in other aspects doesnt maker her incompetent to chose in this context
a.       Just because she was incompetent in other aspects of her life does not make her incompetent to be able to choose
b.      Moe’s actual preference is important part of the substituted judgment determination
c.       Moe has consistently expressed opposition to abortion, would oppose abortion if she were competent
d.      The court should not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if she or he were competent
e.      Reversed
Judge Harms video: looked at fact that she had a previous abortion; didnt think that she was really a catholic
¡  Looked for evidence of Moe’s Catholicism – previous abortion, premarital sex key factors
¡  On sterilization order:  
§  “Well because it certainly was, frankly, the most difficult part of an overall difficult decision. After a great deal of thought, the issue of sterilization seemed to me to be too closely connected to my substituted judgment that an abortion was appropriate for Mary Moe. I struggled for quite some time with whether it would be intellectually dishonest for me to just push the sterilization dilemma aside. But, at the age of 31, Mary Moe being delusional and suffering from schizophrenia and presenting to me, when I interviewed her, as confused, unaware of her circumstances, already been pregnant, now for a third time. I didn’t find anything to suggest that she would stop her practice of unprotected sexual activity and I believed that these particular circumstances compelled me to address the question of whether Mary Moe’s substituted judgment would be to continue serial unplanned pregnancies, and therefore serial abortions.”
§  Interviewer:  Obviously that was the thing that many people felt was a draconian measure to take on the part of a judge.
§  “I think it has to be balanced against the draconian possibility of serial future abortions.”
                – This raises issues:
                                1) is abortion an acceptable thing?
2) mental health – she may be incompetent now, but will she always be? Judges view of mental health
3) Judges view of what is really a catholic – is it her choice to make?  Why does Catholicism factor into it?
-Interesting here in that someone says they don’t want an abortion, but state says you should have one
-Big issues: who should be the decision maker and why? And then how do they come to the right decision
¡  What should be done here?
§  Abortion/sterilization?
§  Who is the proper decision-maker?  The parents?  The court?  Mary?
§  Whose health is more important:  the fetus or Mary?
§  Relatedly, what about the well-being of her parents?
§  Should the court/family attempt to prevent future pregnancies?
§  How does bioethics and its fundamental principles (autonomy, beneficence, non-maleficence, justice) work (or not work) here?
There are 6 fundamental principles of Bioethics (“top down”):
§  1. Autonomy:  right to choose
§  2. Non-maleficence:  duty to do no harm
§  3. Beneficence:  duty to help others
§  4. Justice (Distributive Justice):  benefits and burdens ought to be distributed equitably
§  5. Truth-Telling/Honesty
§  6. Confidentiality:  the implicit promise to maintain sensitive information
¡  Under attack now more than ever
3 main schools of thought in Bioethics
1)      Consequentialism –
a.       Judges acts by the end they achieve, maximizes a goal, end justifies the means
b.      Aka Utilitarianism: it is the right act if it tends to maximize the aggregate happiness of the whole society (act and rule based)
                                                                           i.      Critique?
                                                                         ii.      Examples?
                                – whose happiness ? the actor, all of society?
                                – how do we measure what is good?
– is Apollo 13 a good thing that that happened? for future astronauts, maybe, but not for the 3 people that died
                                – no rules, no structure, no predictability
                                – eg: Slavery – ­­does a lot of good for a country, but it isn’t ethical
                Note: Not the dominant theory in American jurisprudence
2)      Deontological
a.       Justifies the moral propriety of an act on something other than the outcome; mo

o   Wis. Admin. Code and Phar. 10.03(2):
§  Danger to the health, welfare, or safety of a patient or public
§  Harm or potential harm
·         Appellate court:  0.2% increased risk of pregnancy from missed dose
·         Appellate court:  “it does not matter what we would hold the standard of care to be, because we conclude Noesen failed to conform to even his own proposed standard”
·         Appellate court:  found that Noesen’s religious convictions were not burdened – all that was needed was for him to make his beliefs and objections known prior to commencement of practice
o   Law or profession?
Pharmacist conscience clauses
–          Codified the pharmacist’s right to refuse to dispense emergency contraception:  Georgia, Mississippi, South Dakota, Florida, Colorado, Tennessee, Maine
–          Georgia:  “It shall not be considered unprofessional conduct for any pharmacist to refuse to fill any prescription based on his/her professional judgment or ethical or moral beliefs.”  Ga. Admin. Code 480-5-.03(n) (2001).
–          Mississippi:  “A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience.”  Miss. Code 41-41-215 (1998).
–          South Dakota:  “No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to:  (1) cause an abortion; or (2) destroy an unborn child as defined in subdivision 22-1-2(50A); or (3) cause the death of any person by means of an assisted suicide, euthanasia, or mercy killing.”  S.D. Cod. Laws 36-11-70 (1998).
–          S.D. Cod. Laws 22-1-2 (50A):  “‘Unborn child,’ an individual organism of the species homo sapiens from fertilization until live birth”
–          Florida:  “The provisions of this section shall not be interpreted so as to prevent a physician or other person from refusing to furnish any contraceptive or family planning service, supplies, or information for medical or religious reasons; and the physician or other person shall not be held liable for such refusal.”  Fla. Stat. 381.0051(6) (2000).
–          Colorado and Tennessee:  “No private institution or physician, nor any agent or employee of such institution or physician, shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when such refusal is based upon religious or conscientious objection, and no such institution, employee, agent, or physician shall be held liable for such refusal.”  Col. Rev. Stat. 25-6-102(9) (2010); Tenn. Code 68-34-104 (1971).
–          Maine:  “No private institution or physician or no agent or employee of such institution or physician shall be prohibited from refusing to provide family planning services when such refusal is based upon religious or conscientious objection.”  22 Me. Rev. Stat. 1903 (1981).