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Zubik v. Burwell

Supreme Court Case Ruling Could Impair End-of-Life Care for Millions

Compassion & Choices Filed Friend-of-the-Court Brief in Zubik v. Burwell Case

Compassion & Choices weighed in on a U.S. Supreme Court case that could impair end-of-life care for millions of Americans. On Feb. 17, 2016, we filed a friend-of-the-court brief in the Zubik v. Burwell in which the plaintiffs in multiple consolidated lawsuits claim the Affordable Care Act’s contraceptive coverage insurance requirement violates their religious freedom.

“A similar argument could be made by a healthcare provider who morally objects to a medically sound healthcare decision by a patient or surrogate, or to a provision in an advance directive such as a do-not-resuscitate order or a prohibition against the use of a ventilator or feeding tube. Such an argument would upend statutory mandates in 47 states requiring the objecting provider to cooperate in the patient’s transfer to someone who will comply with the decision or directive,” said the amicus curiae brief filed in Zubik v. Burwell by Jon B. Eisenberg, counsel of record with Horvitz & Levy LLP, and Kevin Díaz, national director of legal advocacy for Compassion & Choices, an end-of-life care advocacy organization.

The brief also argued that the result of this case would be especially significant given the breadth of healthcare that Catholic hospitals provide in America.

As of January 2016, nearly 640 Catholic hospitals nationwide—34% of which were located in rural areas—accounted for 5 million yearly hospital admissions and 20 million yearly emergency room visits, according to the Catholic Health Association of the United States. Catholic hospitals in rural areas are commonly the “sole community providers” of healthcare services.

“A substantial number of Americans, many of whom are not Catholic, are treated at Catholic hospitals not by choice but by circumstance,” the brief concludes. “Issues of conscience will inevitably arise in situations where patients’ healthcare decisions and advance directives are at odds with the Ethical and Religious Directives for Catholic Health Care Services (ERDs) to which Catholic hospitals adhere.”

For example, advance directives commonly provide for refusal of artificial nutrition and hydration, but Directive Number 58 of the ERDs requires Catholic hospitals to provide “medically assisted nutrition and hydration for those who cannot take food orally.” In other words, this requirement could apply to patients in persistent vegetative states, violating some patients’ end-of-life care wishes not to artificially prolong their dying process.

Update: After oral argument on March 23rd, the U.S. Supreme Court ordered parties to submit supplemental briefing, essentially signaling there was a 4-4 split among the justices. On May 16th, 2016, the Court issued a ruling, declining to rule on the issues on appeal, but nullifying the lower court decisions. Citing to portions of those additional briefs, this extraordinary ruling returns the underlying cases to their respective appellate courts, with instructions to work on compromise solutions to provide contraceptive coverage for employees.

Although the Supreme Court declined to rule on the merits of the case, it still could impair end-of-life care choice. If the religious nonprofits and the government cannot reach a compromise, there is no doubt that religious freedom will continue to be used as an excuse to deny contraceptive coverage and impact access to healthcare choices throughout life, including the end of life. Compassion & Choices will continue to monitor developments in these cases and advocate for improving care and expanding choice at the end of life.

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