Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice


Life ends … when?

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Life ends … when?

Once the cartoon Life begins … when? was posted, it seemed only natural to start work on the other end of the mortal coil – the shuffling-off end. The content of this cartoon is a little looser, compared with Life begins. After all, while we know more or less what happens when someone is born, death remains the big mystery.

Therefore, although this cartoon begins with an attempt to establish the elusive line between life and death, it goes on to comment on the nature of state law on the matter, the difficult cases of dead-but-not-really-dead people, the impact of pregnancy on dying, and a look at what happens when patients want to die.

In closing, the cartoon shows the aftermath of a tragic group of deaths we experienced as a nation. How are we to be healed?

References and Explanations

Frames 2 and 3. Hollywood lives in these frames! Or perhaps dies, as did the Bad Witch in the Wizard of Oz. The scary-looking machine with Farrah Fawcett in the background is from Logan’s Run (1976). We must confess that in the film it was actually a machine that refashioned people’s faces. We refashioned it for our own purposes to be a life-extending machine.

Frame 4. The gentleman contemplating the blueberries is from a photograph by Oliver Delgado.

Frame 5. The illustration is Crossing the Styxby Paul Gustave Doré (1861). The device shown dropping onto Charon’s boat is a heart-lung machine.

Frame 6. Mrs. Huffnagl was a recurring character in the 1980s medical drama St. Elsewhere. She is included here because of her iconic status as a Problem Patient, but also as a nod to our nostalgia for the television series of our youth.

Frame 7. The photo of the elderly patient is by melodi2. The point here is that a body kept alive by artificial respiration devices or other medical aids is nevertheless considered dead in the total absence of brain activity.

Frame 8. Federalism, the idea that multiple states are governed by a central entity yet still retain significant powers of governance, is a function of a very American history. Alexander Hamilton, James Madison, and John Jay may not have spoken the exact words shown emerging from Madison’s mouth, but they certainly believed in curtailing the powers of the federal government – thus enabling individual states to deviate from any one definition of death.

Multiple systems of law leads to both jurisdictional challenges and conflicts of laws. We admit to including these two images mostly because it was good fun to put words in the mouths of the Federalists and the cast of The Good Wife all at once.

Frame 9. The Uniform Determination of Death Act is model legislation created in 1981 and subsequently adopted by all U.S. statesSome states attached additional language; this accounts for the variation in state law.

Speaking the standard definition in this frame is – who else? – Death, from Ingmar Bergman’s classic film, The Seventh Seal (1957), as portrayed by Bengt Ekerot.

Frame 10. The images of brains in both healthy and vegetative states are taken from a larger graphic produced by the Université de Liège.

Two court cases defined the early days when law was forced by medical advances to consider the rights of patients who were not dead, as they retained some amount of brain activity, if only in the brain stem, but were also not conscious and unlikely to regain consciousness. In Re Quinlan (NJ 1976) concerned a 21-year-old who entered into a coma and later a persistent vegetative state (PVS) following her ingestion of alcohol combined with other medications. Her parents were finally permitted to withdraw life-saving treatment (here, a respirator), under their right to privacy, as extended to the right to refuse medical treatment.

Cruzan v. Director, Mo. Dept. of Health (US 1990), was the more significant case, with an opinion issued by the U.S. Supreme Court. Cruzan, like Quinlan, arrived at a persistent vegetative state, in her case as the result of a car accident. The Supreme Court found a fundamental right to refuse treatment under the “clear and convincing” evidentiary standard that evaluates the wishes of incompetent patients. Specifically, Quinlan’s nutrition and hydration devices were permitted to be terminated because a friend was able to show that Quinlan had earlier declared that under circumstances that encompassed the PVS, she would not wish to live.

The shift of the jurisprudence from determining when death occurs to when death is permitted to occur leads us to consider other complications the boundaries between life and death: babies.

Frame 11. The Ur-case of what may or may not be done to a pregnant woman on the brink of death is In re A.C. (573 A. 2d 1235, D.C. App. 1990). Angela Carder, a terminal cancer patient in the last days of life, was subjected to an unconsented-to cesarean section, authorized by a court order obtained by a hospital physician who believed the institution bore an obligation to save Carder’s 26-week fetus. Both Carder and the fetus died following the surgery; the appeals court found that the court order had been improperly granted because there had been no formal attempt to determine her competency before overruling her wishes.

It is widely felt that the broader implications of the case assure that pregnant women cannot be forced to undergo procedures for the sake of the fetus. However, in practice, the opinion does not quite reach this level of authority, for several reasons. First, the opinion is from the equivalent of a state court, and so formally controls the disposition of this issue only in the District of Columbia. Second, the ruling depends on a competency determination, and so never reaches the question of what to do when a pregnant person is competent and is forced to undergo a procedure. Finally, the opinion cites prominently an earlier Georgia opinion that distinguished its forcible c-section as one that was carried out for the benefit of both a mother and her fetus. It does not require great imagination to understand how many instances of forced c-sections could be construed in this manner. However, A.C. does seem to provide some protection against the hastening of a dying mother’s death for the sake of the fetus’s welfare. We have written more about the issue of unconsented-to c-sections here.

More to the point, perhaps, is the case of Marlise Munoz, a Texas paramedic who was found by her husband, also a paramedic, after she suffered a pulmonary embolism. At the time she was pronounced dead, she was pregnant with a 14-week fetus. As a result, her body was kept functioning in opposition her earlier-expressed wishes and those of her family. The family was ultimately able to disconnect Munoz’s body from medical devices after proof was obtained that the fetus would not survive to viability. Like Texas, the majority of states invalidate advanced directives during pregnancy.

Frame 12. Possibly an even more divisive situation is that of the patient who decides to die. As with giving birth, patients may die whenever they wish to, but they are severely limited in who may legally assist them. Euthanasia, defined as a medical provider administering the means of death to a patient, is forbidden in all fifty states, with exceptions for capital punishment in those states that continue to pass such sentences under state law. “Physician-Assisted Dying” (PAD), on the other hand, is defined as a physician providing the means of death to a patient, including by prescription. The patient is then responsible for administering the medication. Only four states permit PAD. One can argue whether people are indeed free to die if they do not, for example, have the use of their hands, or are unable to swallow. That, however, is a very large and complicated topic, far beyond our scope here. Readers wishing to explore it from a perspective that is at once both comic and horrifying, may enjoy Ian McEwan’s 1999 novel, Amsterdam.

Frame 13. Emerging from the thicket of decisions about when people are dead and what the law believes their rights to be, we come to the question of what really matters for most of us in the presence of death. The answer seems to be process. President Obama is shown in this photo by Lawrence Jackson singing “Amazing Grace” at the funeral of the Reverend Clementa Pinckney, one of the victims of the terrible racially-motivated killings at Mother Emanuel African Methodist Episcopal church in Charleston, South Carolina in 2015. The importance of the community’s reverence for the dead and the observance of rituals particular to that community cannot be overstated. We are tremendously grateful to retired home birth midwife Merilynne Rush, who now works on Death Cafes and home funeral care, for consulting with us on this cartoon and helping us to take in this reality.

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