Many commentators have explained that the negative right to refuse treatment does not entail a corollary positive right to demand treatment. A story in an analogous context illustrates the difference.
AWashingtoncollege student published anop-ed in the Spokesman-Reviewabout her grandfather. In March, the grandfather “was diagnosed with terminal end-stage pancreatic cancer that had manifested into his liver and lungs.” “After watching his wife suffer, 21 years ago, with immense pain as cancer spread throughout her body, [the student’s] grandfather had decided that he did not want to suffer in the same manner she had.”
But upon requesting Death with Dignity, that took effect in March, the grandfather discovered that “procedures were not in place, and there were no doctors who would support his decision to die peacefully.” The author complains: “The Death with Dignity Act was set up and passed for people much like my grandfather. Whether people agree with the act or not is not the issue at hand. This law has passed, and it is the right of any patient who meets the criteria to request it. But there are no avenues offered to obtain this kind of request, making it difficult to fulfill a family member’s dying wish.”
Right, DWD grants a statutorily protected liberty right. But it is not an entitlement right. If parties (doctor and patient) want to engage in PAS (in the prescribed manner), then the government will not interfere. But by granting this right, the state never purported to guarantee that there would be available and willing providers.
Perhaps the most famous case illustrating the gap between liberty rights and actual access isHarris v. McRae. Earlier,Roe v. Wadehad established a constitutional right to abortion. But Congress decided that those would not be covered under Medicaid. The lawsuit alleged that the government’s failure to pay for the abortion effectively deprived the plaintiff of her constitutional right. Indeed it did.
But there was no constitutional violation because the government did not block the plaintiff’s access to an abortion. It created no roadblock. It just failed to help her remove one. The plaintiff’s inability to get an abortion was due to her own poverty. The government did not step between the woman and her doctor. It just did not help create any such relationship.
Futility disputes are more complicated than DWD, abortion, or RU486 refusals because the doctor and patient are already in a treatment relationship. That makes it much more difficult for the healthcare provider to refuse. Still, some have asked why, if the problem is just the contractually-based treatment relationship, why the scope of treatment could not be specified in contract when the relationship if first established. The most obvious answer is that given the exigencies of the circumstances, it is likely that such a contract would be unenforceable as unconscionable
Many commentators have explained that the negative right to refuse treatment does not entail a corollary positive right to demand treatment. A story in an analogous context illustrates the difference.
AWashington
But upon requesting Death with Dignity, that took effect in March, the grandfather discovered that “procedures were not in place, and there were no doctors who would support his decision to die peacefully.” The author complains: “The Death with Dignity Act was set up and passed for people much like my grandfather. Whether people agree with the act or not is not the issue at hand. This law has passed, and it is the right of any patient who meets the criteria to request it. But there are no avenues offered to obtain this kind of request, making it difficult to fulfill a family member’s dying wish.”
Right, DWD grants a statutorily protected liberty right. But it is not an entitlement right. If parties (doctor and patient) want to engage in PAS (in the prescribed manner), then the government will not interfere. But by granting this right, the state never purported to guarantee that there would be available and willing providers.
Perhaps the most famous case illustrating the gap between liberty rights and actual access isHarris v. McRae. Earlier,Roe v. Wadehad established a constitutional right to abortion. But Congress decided that those would not be covered under Medicaid. The lawsuit alleged that the government’s failure to pay for the abortion effectively deprived the plaintiff of her constitutional right. Indeed it did.
But there was no constitutional violation because the government did not block the plaintiff’s access to an abortion. It created no roadblock. It just failed to help her remove one. The plaintiff’s inability to get an abortion was due to her own poverty. The government did not step between the woman and her doctor. It just did not help create any such relationship.
Futility disputes are more complicated than DWD, abortion, or RU486 refusals because the doctor and patient are already in a treatment relationship. That makes it much more difficult for the healthcare provider to refuse. Still, some have asked why, if the problem is just the contractually-based treatment relationship, why the scope of treatment could not be specified in contract when the relationship if first established. The most obvious answer is that given the exigencies of the circumstances, it is likely that such a contract would be unenforceable as unconscionable