Response

Abstract

To the Editor: In response to my recent article, “The Uncommon Case of Jahi McMath,”1Luce JM The uncommon case of Jahi McMath.Chest. 2015; 147: 1144-1151Abstract Full Text Full Text PDF PubMed Scopus (39) Google Scholar Dr Pope correctly notes that New York regulations do not require that death be determined solely by cardiopulmonary criteria to meet religious objections, as New Jersey law does. Indeed, the guidelines merely require that hospitals establish written procedures for the “reasonable accommodation” of such objections. However, as Olick et al2Olick RS Braun EA Potash J Accommodating religious and moral objections to neurological death.J Clin Ethics. 2009; 20: 183-191PubMed Google Scholar have observed, the New York guidelines offer little, if any, guidance regarding what constitutes reasonable accommodation and, therefore, can be interpreted differently by hospitals across the state. In contrast, reasonable accommodation under California law is specified as a “reasonably brief period … afforded to gather family or next of kin at the patient's bedside.” Furthermore, California law states that “in determining what is reasonable, a hospital should consider the needs of other patients and prospective patients in urgent need of care.” Neither the New York regulations nor California law obligate third-party coverage for the patient care provided to accommodate religious objections, as New Jersey law does. Absent such coverage, this care must be paid for by families or, more likely, written off by hospitals. Dr Pope argues that “reasonable accommodation” laws like those in California and New York could be extended to other states and that this extension would not create undue burdens because the duration of accommodation would be limited and because religious objections would be few. Although I agree that the California law, with its specificity, may be a model for other states, I worry that nonspecific regulations such as New York's may not only accommodate but also invite religious objections. I also am concerned that such objections may not be restricted to members of the organized religions cited by Dr Pope and that accommodating the objections may be more burdensome than he believes. In this regard, the so-far-uncommon case of Jahi McMath may serve as a cautionary tale. Mr Yanke and colleagues emphasize the need for caution in describing how the legal landscape has changed since the US Supreme Court decision in Employment Division, Department of Human Resources v. Smith.3Employment Division, Department of Human Resources v Smith, 494 US 872(1990).Google Scholar This decision established that neutral laws of general applicability, a category into which the US Uniform Determination of Death Act (UDDA) falls, need not include religious exceptions that would allow families like Jahi McMath's to require that death be determined solely by cardiopulmonary criteria. However, the Court's recent decision in Burwell v. Hobby Lobby4Burwell v Hobby Lobby, 573 US (2014).Google Scholar suggests that it may not follow the standard set by Smith in the future, as I noted in my article.1Luce JM The uncommon case of Jahi McMath.Chest. 2015; 147: 1144-1151Abstract Full Text Full Text PDF PubMed Scopus (39) Google Scholar Furthermore, as Mr Yanke and colleagues observe, recent state statutes prohibiting the government from violating the exercise of religion through laws of general applicability cast further doubt on the prospects of the UDDA surviving constitutional challenge. Failure of the UDDA to survive a challenge would have an adverse impact on organ donation and subsequent transplant, practices highly valued by American society. The US Uniform Determination of Death Act: Will It Survive a Constitutional Challenge?CHESTVol. 148Issue 2PreviewThe unusual case of Jahi McMath, written by Luce1 in a recent issue of CHEST (April 2015), has raised many ethical and legal challenges to the current legal and medical definition of death in the United States. The success of a constitutional challenge to the US Uniform Determination of Death Act (UDDA) would have a major impact on organ procurement and transplantation practice. Many individuals declared dead by neurologic criteria supply human organs for transplantation practice in the United States. Full-Text PDF