Author Archives: teneillebrown

Why Everyone’s Afraid of the Big, Bad Socialist (and why it’s a sheep in wolves’ clothing)

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

If you want to destroy a program, call it “socialist.”  Unfortunately, most people who invoke this term of late have no idea what it means.  For those defacing pictures of Obama to make him look like Hitler, Socialism is not Nazism.  Hitler was a fascist – meaning that he crushed opposition, symbols of power and race were paramount, and the nation was exalted above the people. Socialism, on the other hand, merely means that the government manages the production or distribution of certain goods.  For the love of God, please stop conflating socialism with the Nazis or communists. Socialism may be ugly in its extreme, but there is nothing ugly about many stripes of socialism.

Public education is socialist.  The preservation of streams and clean air is socialist.  Public libraries are socialist.  Requiring car insurance is socialist.  Disaster relief is socialist.  Medicare is socialist.

If Medicare is a federal program overseeing health benefits for those over 65, then why does it stir up hysteria when the government suggests a similar option for the rest of us who are under 65?   Probably because lobbyists have done a great job of confusing the issues.  They are making it seem like the government will take away your insurance and replace it with sub-standard care.  This is a misconception. The president’s current plan does not limit choice, it expands it.  If you are under-insured, the plan merely provides another option similar to what members of Congress have.  There would be no “death panel” that decides whether you receive care.   Rather, you would be given information on options and risks of intubation and feeding tubes, and YOU would decide what to do.  Incidentally, we have data that indicate that people who receive end-of-life counseling are not less likely to get care; in fact, it improves quality of life and attitude.

We also have data on health care reform.  It all points in the same direction.  We need to cut costs.  We need to insure more people and divorce employment from insurance.  We need to stop incentivizing the liberal ordering of unnecessary tests.  We need to realize that for every dollar we spend on futile measures, we are taking away resources from effective prevention and treatment.

When it comes to highly politicized issues, we almost never have access to the kind of data that we have here.  For starters, we know that Americans pay twice as much as other industrialized nations and we have far worse outcomes.  We rank in the bottom percentiles on life expectancy and infant mortality, and we have roughly two times the rate of heart disease, stroke, and diabetes. Apparently, more is less.

But insurance company lobbyists would have you believe that the status quo is amazing and no one wants change.  In order to get a sense of the true health care climate, what we really need to do is chat with those who are sick.  They will tell you that they spend their Saturdays fighting insurance companies to pay for claims. They are forced into bankruptcy due to cancer and they’re kicked out of their homes despite having a lifetime of good credit.  We need to stop listening to corn-fed cattle, herded to the townhall meetings by insurance lobbyists who are hoping to create a real-life episode of the Simpsons – complete with the mob psychology. Maybe if they confuse us enough we will shoot ourselves in the foot and squash important change.

But why is change so unattractive?  Are we dragging our feet because we believe that only other people get sick, and if they do, it’s their fault? Are we naively wedded to the American ideal that we don’t need the government to help us out of problems (unless, of course we are “too big to fail,” then please send the government checks.  Sincerely, Corporate America.)  Surely, now more than ever, we realize that none of us is immune from losing our jobs and insurance.

Health care is a public good – like libraries, education, and the environment.  Should the free market provide education, while poor kids slip through the cracks?  Should capitalism decide how much of our forests to destroy?  Of course not. We need to stop invoking socialism as an automatic conversation stopper.  Widespread socialism can be wasteful.  But in some cases, socialism is not only moral, it’s critical to the sustainability of our society.  — Teneille Brown

Advertisements

Virtue, or virtuoso

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

I went solo to see the Soloist last night.  It was a pretty good movie, but it had a lot going for it from the get-go, as far as my film-preferences go: mental illness, neglected urban decay, wordy nerds, and a love of music that borders on idolatry.   What I didn’t expect for it to include was something else that gets me going: medical ethics.  First, a little background.  Then, I will get back to the movie.  Don’t worry, no spoilers.

One of the crowning tenets of modern medical ethics is that individuals should not be forced to undergo treatments, and they should be adequately informed about the risks of various therapies before they agree to sign-on.  I think we can all agree that, in general, informed consent is an ethical concept.

In response to research atrocities of the last century and the paternalistic notion that a doctor “knows best,” the right of an individual to direct her health care decision-making has been enshrined not just in medical ethics, but also in the common law of tort.  Individuals who are treated without giving their voluntary informed consent can sue under negligence doctrines, and in some states under fraud.

Despite being a cornerstone principle in bioethics, the limits of obtaining informed consent have been recognized.  Children are not able to give informed consent, though there is a growing movement to allow adolescents to have their opinions taken into account alongside their parents’ assent.  Patients who lack capacity (meaning they are not capable of making specific medical treatment decisions) cannot provide informed consent.  And in some cases, because you are of a class of people so vulnerable and so routinely abused by society, we assume that your ability to consent is compromised.  And in some cases, it probably is.  This thinking, however motivated it is by protecting the best interests of the subject and deterring those who seek to exploit the poor, perpetuates a system where some people’s wishes are deemed per se illegitimate (though we often couch the discussion of informed consent in thoughts of duress or coercion).  While I understand the roots of this thinking, and its proper default of erring on the side of protecting the vulnerable, I do suggest that on occasion we challenge its application.  To assume that under no circumstances could a poor mother in India voluntarily consent to be paid $100 in return for participating in a low-risk clinical trial is condescending and denying the very agency we want to respect.  It’s a perverted return to a type of paternalism that assumes informed consent means “you would choose what I would choose.”

But the pendulum swings both ways.  On the opposite side do we have perhaps too much deference for an individual’s ability to direct her care?  In cases where patients are mentally ill, stricken with schizophrenia and not taking any medication, would it be ethical to force them to take anti-psychotic drugs, if just for a little while, so they could get a window on to what their world might be if they chose to continue with meds?  Of course traditional theorists of bioethics answer a resounding, “no.”  But this is the question Steve Lopez’s character (played by the gifted Robert Downey, Jr) asks for a moment in the Soloist.  He met Nathaniel Anthony Ayers, a homeless man who once attended Julliard, on the streets of LA.  Lopez is a journalist at the LA Times, and at first just wanted to write a column about Ayers, describing how one could go from cellist prodigy to living on Skid Row.

Along the way Lopez decides that Ayers may have schizophrenia, based upon his confusing speech patterns and his altered(?) sense of reality.  But of course Lopez cannot diagnose Ayers and neither can we.  Instead, Lopez asks the volunteers at an LA community clinic to provide Ayers with mental health care.  Lopez asks why the clinic cannot force Lopez to take meds.  The clinic coordinator speaks from the cynicism that only a fallen optimist could possess.  He instructs Lopez that they could only force Ayers to take his medication if he were a danger to himself or others.   To this, Lopez poses a (paraphrased) hypothetical: “what if I called the police and said that Nathaniel had threatened me?  He would then get 14 days of mandatory treatment where he could see how his life could be, free from mental illness…wouldn’t you want to be a part of that?”  As Lopez contemplates Ayers’ life on the rough streets of Skid Row, he asks, “Is arm-twisting him to take medication more humane than leaving him here?”   Incidentally, under California law, Lopez could be held civilly liable if he lied to the police about Ayers’ risk to himself or others…

Of course, Lopez assumes that anti-psychotics would likely help Ayers, and they very well may not.  It’s also possible that Ayers has already tried to stick with various treatments, and the negative side effects were just too much for him.   Or, Ayers has a history of coerced treatments, where he has been tied down, given electro-convulsive therapy or received so many meds at such high doses that he was left snowed and unable to appreciate Beethoven.  This is of course not the kind of treatment supported by the APA, and it’s obviously possible to have well regulated, moderate doses of anti-psychoatics prescribed that don’t leave people snowed.  We do not know what treatment Ayers has experienced before Lopez enters his life with his journalistic lens.  But it is interesting that if someone, as a result of mental disorder, were considered an imminent threat to himself or society, he could be involuntarily committed for some time under various state laws.  For example, in California, a 5150 hold would allow such a person to be restrained in a health care facility, without his consent, for 72 hours while he is evaluated and treated.  Why is our focus on the immediate threat, and not on someone who is slowly and predictably killing himself?  Perhaps this is because the statutes were often written to prevent battery, homicide, or suicide.   In an ideal world the state would help people be the “best” version of themselves, and keep track of our deleterious behaviors over time – but this is unrealistic.  The state cannot protect you from many things that fall short of the criminal code, even those self-destructive things that would together amount to the same outcome, albeit more slowly.  But is it just about what’s practical, or is there something else motivating the distinction over forced treatment when the danger is imminent?

I guess I’m wondering why it is that we’re so inconsistent with our principle of informed consent.   In some cases we may be overly deferential and in others – overly paternalistic and dismissive.   Our informed consent behavior, as codified in state statutes and court cases, does not track cognitive capacity or SES/vulnerability very neatly.  Perhaps the difference is that with the mentally ill, we are forcing them to take something that might not work, rather than letting the juggernaut of the status quo do its work.  But don’t we forcefully treat thirteen year olds, who might actually be better able than those with schizophrenia to understand and articulate their wishes?

Maximizing informed consent is something for which to strive.  But can we ever do as good of a job as we hope/think we are doing?  What if, on the margins, informed consent is just a channeling device, making us feel better about our substitute judgment of what is in the individual’s best interests?  And when we cannot presume to know what is in the best interests of someone’s brain that is so foreign to us – either because it’s so poor, so third-world, so mentally ill or disordered –  we stick with the false safety of the status quo?   — Teneille

Request to admit No Lie MRI report in California case is withdrawn

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

The Center for Law and Biosciences received this very gracious (and unnecessary!) thank you letter today from the dependent’s counsel, Gary Seiser.  I speak on behalf of Emily, Hank and myself when I say it was a pleasure assisting you, Gary.  We are very happy with the outcome. To see the background on this case that has been made public, see Emily’s blog entry here and the Wired article covering the story, here.     — Teneille

______

Professor Henry “Hank” Greely
Director, Center for Law and the Biosciences
Stanford Law School

March 25, 2009

Dear Hank:

I wanted to thank you for agreeing to co-counsel the evidentiary hearing on the admissibility of fMRI for lie detection, and for all the help you gave me in preparing for the hearing.

I also wanted to thank Emily Murphy, Ph.D., and Teneille Brown, J.D., both at Stanford, for all they did for me.  As someone who had never heard of fMRI, let alone fMRI for lie detection, their almost daily explanations, suggestions, and help were invaluable.

Three others also deserve thanks.  Anthony Wagner, Ph.D., at Stanford gave me a broader understanding of fMRI.  Rich Haier, Ph.D., at UC Irvine was extremely helpful answering questions and providing me with material.  And Andy Kozel, M.D., of the University of Texas Southwestern, for agreeing to talk with me and to share his latest articles; his openness and honesty were very welcome.

Special mention should go to Marcus Raichle, M.D., of Washington University in St. Louis, for agreeing to take time out of his very busy schedule to fly to San Diego and testify that use of fMRI for lie detection is not yet generally accepted by the relevant scientific community as reliable, especially for real world, high-stakes situations involving individuals.  Talking with a senior scientist of his stature and knowing he would be our witness was an honor.

I could not have adequately prepared for this evidentiary hearing on admissibility without all of you.  Now I understand both the great potential of fMRI for lie detection, and the many hurdles yet to be overcome before it is ready for the courtroom.  It has definitely been a learning experience.

As you know, this week the proponents of the evidence withdrew their request to have it admitted, thus ending the issue in our case.  I won’t speculate on why they did that.  I will only say I was confident that with all the help I had received, you assisting as co-counsel, and Marc Raichle on the stand, we would have prevailed.  In a way, we did.

As you understand, the confidential nature of our proceedings prevents me from saying more at this time, but please know the help from all of you in the legal and scientific communities was greatly appreciated.

Sincerely,

Gary Seiser

Gary C. Seiser, Senior Deputy
Office of County Counsel
Juvenile Dependency Division
4955 Mercury Street
San Diego, CA  92111-1703

Certified Child Welfare Law Specialist (CWLS)
National Association of Counsel for Children
Accredited by the State Bar of California
Board of Legal Specialization

Good faith, faith?

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

A story in the NY Times today sets out the case of Kara Neumann, an 11 year old girl who died of juvenile diabetes.  Instead of taking their daughter to the hospital, her parents relied on the healing power of prayer.  The girl’s body eventually succumbed to ketoacidosis (the downstream effect of the body’s failure to produce insulin).  The day before she died, she apparently stopped speaking entirely.  Still, the parents prayed.

The Neumanns are being charged with reckless endangerment in Wisconsin, where a state law will not allow parents to be charged with abuse or neglect “solely on the fact that the child’s parent, guardian, or legal custodian in good faith selects and relies on prayer or other religious means for treatment of disease…” [W.S.A. 48.98] To me, it’s troubling that in 2009 we still have statutes on the books in 30 states that may allow parents to rely on faith healing when the potential harm to the child is death, and the intervention is relatively safe and effective. It looks like some of these state laws do not allow parents to seek safe haven if the disorder is life threatening, which is a step in the right direction.  The case will likely hinge on what the parents knew, and whether their treatment was in fact reckless.  The child had not been to a doctor’s office in several years, but the actual time frame for the acute episode appears to have been relatively short (around 3 days).

I understand that Kara’s parents were followers of an online faith network called Unleavened Bread Ministries, run by David Eells.  Members of the group have claimed on their website that “if we are going to judge this family — which we really have no right to do — we need to understand completely what the Bible states about healing and prayer.” Actually, we don’t need to rely on what the Bible says.  In courts of law, the Bible is not controlling.

-Teneille

(thanks to Julia for the reference)

PETA calls for Brain Scan of Michael Vick: how neuroscience is once again being called upon to solve what are fundamentally normative problems

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

Michael Vick used to be the NFL’s highest-paid player.  That was before he was caught bankrolling a gambling ring that killed dogs by shot-gun, electrocution, drowning, and heinous beating  (hard words even to write).  He was charged with conspiracy and is currently serving his 23 month sentence.  Despite this incredibly public, negative exposure, there are still some NFL teams who are interested in Vick after his sentence is complete in July.  Will it be the Dallas Cowboys?  Will he be able to regain his instincts as a passer, given how the NFL has become so much of a passing league?   I can’t pretend to understand how commentators could focus on these mundane questions, given what we know about Vick’s life off of the field. But before I wax too moralistic…I don’t think you have to be a dog-lover like me to see the shame and atrocity in the way the pit-bulls were treated in Vick’s “Bad Newz Kennels.”  It’s hard to imagine a human being capable of that kind of violence toward something so innocent and defenseless.  But Vick wasn’t charged with being a bad person, he was charged with conspiracy.  And that sentence is almost up.

The Commissioner of the NFL, Roger Goodell, stated that he owed it to the public to make sure Vick was capable of remorse before he ever wore an NFL jersey again.  Oh, that’s helpful.   I can’t imagine that a statement of remorse will go far enough to restore his public image, but perhaps it would allow the bottom-line-blinded teams to take him back into the fold.

While I don’t think that a public statement of remorse should morally cut it, I also do not support the inquisition by People for the Ethical Treatment of Animals (PETA).  Officials from PETA sent a letter to the NFL commissioner today saying that Vick should be checked to see if he is a psychopath or sociopath before he can return to the NFL.  And the method that they specifically suggested?  Brain scans.  PETA wants Vick to undergo a full psychiatric evaluation and a brain scan to determine whether he has anti-social personality disorder or psychopathy.  Excuse me, what?

Functional brain imaging cannot be used to diagnose psychiatric illnesses.  Full stop.  Not yet.  Researchers such as Kent Kiehl are currently making strides in locating neurological  markers of psychopathy, but they are not yet able to reliably use brain scans to diagnose someone with ASPD or psychopathy.  (Kiehl posits that psychopathy or APSD may be caused by a defect in the “paralimbic system,” but he acknowledges this is still a theory).   Because of the methodological limitations of fMRI, even if there were a deficit, the scanner might not pick it up.  Further, there could be reduced metabolism in the brain regions of interest, and yet this may not have any connection to psychopathy or ASPD.  So at this point, the scans would add nothing to explain Vick’s behavior.

Assuming for a second that brain scans could actually diagnose these disorders, why would this information be relevant at all in determining whether or not Vick should return to the NFL?  Would such diagnoses exculpate him from his bad acts, or make it impossible for him to return to the NFL, as he might strike again and sully the brand?  According to the letter from PETA to Goodell, PETA wants to use the brain scans to answer the question, “whether Michael can change.”  While parole boards and sentencing judges may ask whether someone “can change” (i.e., will they offend again)  PETA is not a legal entity and it cannot impose that sort of process on the NFL.  As the law has nothing to say in this case (where the sentence will have run and the NFL teams can hire or fire whomever they want) it seems to me that this is really a normative question for society to decide.  And one way we make social decisions is to trade signals back and forth —  in petitions, outrage, public apologies, and appeals for psychiatric tests.

But what is the relevance of this finding if it were somehow possible to show he would re-offend?  That it’s ok to brutally kill animals once, but not twice?  I guess it is hard for me to understand how PETA’s argument works; asking whether or not Vick can change seems to me to be the wrong question.  If Vick truly has no volitional control (as evidenced by the dazzling, commissioned brain scan…?) and he could not change his behavior, then might that make us a bit more sympathetic to his predetermined actions? The sword can cut either way.

Vick did what he did.  A signal of apology may or may not move anyone to think he should be restored to his previous NFL glory.  But the question that actually lies underneath all of this is to what degree society ought to punish someone who did what Vick did.  The law has not answered that.  Neuroscience cannot answer that.  Only we can answer that, by using a low-tech device of consumer activism: the boycott.

— Teneille Brown

Brain Scans of Pain Raise Questions for the Law – CLB conference written up in Science

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

CLB’s recent conference on Pain and Neuroimaging has been featured in this week’s edition of Science.  323 Science 195 (2009).  In  Brain Scans of Pain Raise Questions for the Law, Greg Miller highlights the  December 4th conference at Stanford Law School where Sean Mackey, Adam Kolber, Amanda Pustilnik, Katja Wiech, Vania Apkarian, Stephen Easton, David Faigman, and our own Hank Greely commented on the legal uses of neuroimaging as evidence of pain.

Each of the speakers raised significant near-term challenges to the use of fMRI in legal proceedings as evidence of pain.  However, some of the speakers thought the horizon was not that far off for its appropriate legal use.

Katja Wiech underscored the significant variability in our subjective assessment and sensitivity to pain.  She also presented interesting data from her lab on the effect of perceived self-control on pain assessments.  Interestingly, pain intensity was rated as significantly higher to the subjects when they were told that a computer or other person controlled the stimulation, even though the stimuli strength was the same throughout. This research may be helpful in developing more humane policies for implementing painful procedures in the clinic or in the criminal justice system.

Sean Mackey questioned how we might ever be able to use brain imaging to make reverse inferences about whether someone is or is not in pain.   Put differently, just because we see brain activation in a plaintiff, it does not mean we can currently say she was or was not in pain.  This is because there are no specific “pain centers” of the brain that are common to all people and across all pain stimuli.

Vania Apkarian discussed the behavioral effects of chronic pain.  According to data he presented,  chronic back pain patients are impaired at emotional learning, but have increased sensitivity to taste.  He therefore quipped, “take them to Napa rather than Vegas.”  Based on characteristic activation in certain brain areas, Vania’s team could predict how long someone had been in pain based on the magnitude of the activation in an area of the brain called the right insula.  The more time the person has been in a specific kind of pain, the more active this area is.  This could have interesting legal significance, as it might one day be used as a time marker to help identify the cause of a particular injury.  However, this technique should not be admissible until we know more about the particular type of pain stimulus and how specific the brain activation is in response.  What is the predictive value of the brain imaging when cross-referenced with the subject’s actual time-course of pain?  This may be too difficult to isolate in a way that would be useful for a particular plaintiff,  still, it’s interesting…

Unfortunately I was not able to attend all of the fascinating conference.  If you were there and had any other points you either heard or wanted to share, please do so here!

If you would like to listen to the audiofeed from the conference, you can download the files here.

Teneille Brown

Man Has Created Death

The Stanford Center for Law and Biosciences has decided to leave the WordPress servers for greener pastures: namely, the Stanford Law School blog aggregator.

This address will no longer be updated. All posts from this address have been migrated to the new address:

http://blogs.law.stanford.edu/lawandbiosciences/

Please update your bookmarks and RSS feeds accordingly.

He knows death to the bone
Man has created death. – Yeats

Just as there is debate over when life begins, there are different beliefs about when it ends.

According to news accounts, a 12 year old child named Motl Brody was diagnosed with a highly malignant brain tumor and brought to Children’s National hospital in DC, where he underwent surgery in June to have the tumor removed.   Shortly after the procedure, Motl’s doctors began discussing end of life decision-making with his parents.  The young boy’s prognosis was grim.  Many weeks had passed and Motl had not regained consciousness.  Social workers apparently tried for months to find an appropriate palliative facility where they could send the unconscious boy, but the parents were worried such a facility would not engage in heroic resuscitating measures.  As I understand it based on third-party news accounts, the parents were also growing apprehensive that transferring their son to another institution may be too risky for his health.  During this time, the medical team assessed Motl’s brain and found it to have zero activity.  According to DC law, brain death = death. The child was sadly not able to breathe on his own without the help of a ventilator, and his heart only continued to beat because of the drugs that he was on and the artificial support he was receiving.  The medical team thought it was time to withdraw the ventilator and acknowledge that young Motl was dead.

Under different circumstances, this would have happened.  The family would be called to the patient’s bedside while the life support were terminated and the family said their goodbyes.  But the Brodys are orthodox Jews.  According to their belief system, which is not shared by all Jews, death is not defined in alignment with DC law (cessation of all brain function).  Rather, their faith defines death as when the heart stops functioning and there is cessation of breath.  Many community members wrote to the hospital echoing this belief and imploring the medical team to sustain Motl on the ventilator.  The hospital had apparently gone to court seeking judicial approval that the physicians acted properly under DC law when they declared the child legally dead. In jurisdictions where a brain death standard of death is the law, once brain death has been determined by proper medical diagnosis or by judicial determination, no civil liability will traditionally result from disconnecting life-sustaining devices.

Motl’s parents argued that their child was not dead under their rabbi’s interpretation of Jewish law.  The parents were poised to argue that DC Children’s would be in violation of the Religious Freedom Restoration Act, if the hospital set aside their religious beliefs and denied Motl further care.  Before the courts resolved this legal battle, young Motl passed away last week – the ventilator apparently not being enough to maintain his heart function and breathing.

If Motl had not passed before the legal battle ensued, what would the courts likely have said?  In the United States, we have the First Amendment to our Constitution, which protects individuals from the state endorsing religion or restricting its free exercise.  But the free exercise of religion is not absolute.  You cannot fail to pay taxes, abuse your children, or murder someone on religious grounds.  These are easy cases.  But what about the more difficult situation where a religious group argues a statutory definition of death violates their freedom of religion?

The state has some power to reasonably curb religious activities in a nondiscriminatory manner, to protect the law and order of society.  If a religious practice is burdened by state action, it does not automatically mean that a religious accommodation must be granted to members of that faith.  So long as the state justifies the incursion on liberty by showing that it is the least restrictive means of achieving some compelling state interest, the action will not violate the First Amendment.  Only incredibly important state interests can trump legitimate claims to the free exercise of religion.

So how then may the hospital and city of DC responded crafted the state interest, and how might the Brodys have responded?  Of course we do not know for certain how the case would have proceeded, if at all.  But the question about state interest seems not that difficult to me.  Might I venture that the state has an interest in furthering consistent legal definitions of death without regard to religious beliefs?  Whether it is a compelling state interest is open for debate, but I would argue that it is.  Everything from murder charges and probate and tort cases are impacted by the definition of death, and it would be incredibly problematic if the definition of death hinged largely on idiosyncratic religious beliefs.  A separate state interest exists in being able to allocate precious hospital resources, including hospital beds and organs for donation.  Here again, I think the state interest is compelling. In cases such as Motl’s, where the heart is only functioning due to artificial support, should hospitals be legally required to sustain the child on life support forever?  Perhaps the restriction on religious liberty could be narrowly tailored by requiring that the patient be given the opportunity to continue to breathe without artificial support stepping in for the dead brain.  This suggestion is not meant to be callous, but it drives the point home that but for the artificial respiration the heart would not be functioning when the brain is completely dead.

New York and New Jersey are the only two states that provide an exception for orthodox Jews to their state laws regarding brain death.  In these two states, death is legally defined as either when there is zero brain activity, or, if the individual is an orthodox Jew, when the heart stops beating.

With all due respect to religions that believe similarly, is it possible that this special exception to the definition of death, that is meant to ensure that the state does not infringe Jewish practice, actually endorses some religions over others?   What is to stop a group of like minded believers from petitioning hospitals and arguing that according to their belief, death occurs when the flesh disappears?  Or, taking up the opposite end of the life spectrum, what if some group believes that life begins at conception – and if there is risk of miscarriage in the first trimester, the state must intervene and provide life support to the fetus while it matures to full term in an incubator?

The anticipated and reasonable response to this is that the Jewish faith is a major world religion.  It is decidedly mainstream and well established.  It is qualitatively different from some eccentric, recently developed faith.  Alternatively, the argument could also be made that the requisite accommodation for the belief is not unwieldy and does not threaten social order.   But can this be what drives the First Amendment?  (Scholars in this area are invited to chime in – I would actually appreciate some feedback as to why the social aspect of religion is required before protection is often triggered.)

My problem is obviously not with this particular belief or with any religious group.  I have an enormous amount of respect for religious people of all types and philosophies.  My problem is with the ability of religious groups to lobby their legislatures for carve-outs.  As was the case in New York and New Jersey, when a religion represents a large enough group, the political representatives from the state may respond to political pressure and include a statutory exception for specific religious beliefs.  But can this really be what the First Amendment is about?  Protecting the religious beliefs of the majority?  Surely not.

I extend my deepest respect and thoughts to the families of those affected by laws that run afoul of their religious beliefs.  I certainly do not write these words to be hurtful or disrespectful for Motl’s parents and family.  I am truly sorry for their recent loss.  But I do not think the Free Exercise Clause was intended to be used as a tool to protect the well-organized majority against the minority, and I wonder whether statutory carve-outs for certain religious groups may actually do the opposite of what was intended by the drafters of the First Amendment.

– Teneille