John A. Robertson (1943 – 2017)

Renowned bioethics scholar, longtime University of Texas Law Professor, and frequent Bill of Health contributor John A. Robertson has recently passed away. We at the Petrie-Flom Center mourn his passing, and our Faculty Director I. Glenn Cohen writes a few words:

I saw John roughly a month ago at the Baby Markets Roundtable at UT Austin. He was, as he always was and as he still seems to me in my mind’s eye, full of electric intellectual energy, warmth, and whimsy. Every comment that I heard him make for over a decade at conferences began: “That’s so interesting…” and then he would proceed to subtly add something to whomever he responded to that was at once flattering of the idea and also five times better than what was said by original speaker. Certainly that’s how it felt when I was the person to whom he was responding.

Much will be said in coming weeks about his work—not only the centrality of Children of Choice to almost everything that has been written since on reproductive technology, but also the breadth of his work and the way in which almost every new technology soon had a wonderful take by him in print (IVF and uterus transplants most recently).

I’ll limit myself to two reflections. First, the way in which he put the field I write in (law and bioethics or law and the biosciences, depending on who you ask) on to the law school map, and with a few others (Rebecca Dresser, Alta CharoHank Greely, etc), gave it legitimacy as a real and important area of focus within law schools.

Second, and more personally, John was just about the best mentor to young scholars I have ever encountered. I met him first while I was a fellow at an ASLME event and I was blown away by the warmth and generosity of someone I considered a giant in the field (my idol if I’m honest) to a little pischer like me. Over the years I saw him do the same for countless others and I tried to do my best to palely imitate.

I can’t believe he is gone. The world seems a little darker.

Most-Cited Health Law Scholars (with an update on multiple authors)

By Mark A. Hall and I. Glenn Cohen

Based on the law faculty citation analysis done by Greg Sisk, Brian Leiter has compiled “most-cited” rankings of tenured law faculty in a number of different subject areas, but not health law.  Naturally, we would be curious to know how we and colleagues might show up in such a ranking, but more than this, we were curious how the field of Health Law as a whole would look, compared to other fields, and how well different component of health law might be reflected.  Health law (as many people conceive it) is a broad field that includes bioethics, biotechnology, medical malpractice, health care finance and regulation, health policy, and public health.

Using Leiter’s methods and the Sisk data (supplemented as noted below), we compiled a citation-count ranking of health law scholars over the five-year period 2010-2014 (which is the latest currently available from Sisk).  We classify faculty as health law scholars if publications in this field account for the bulk (roughly 2/3) of their more recent citations.  A research librarian at Wake Forest University supplemented the Sisk data by doing citation counts (using his same methods) for an additional two dozen prominent health law scholars who are not on the Sisk list because they are at lower-ranked schools (below the top 70) or are based at schools of medicine or public health.  To ensure maximum comparability between these rankings and those already existing for other legal fields we conformed to Leiter’s presentation, which entailed, among other things, rounding citations to the nearest ten and estimating the age of those ranked.  Continue reading

Whole Woman’s Health and the Future of Abortion Regulation

By John A. Robertson

Whole Woman’s Health v. Hellerstedt (WWH) is the most important abortion case since Casey in 1992, and a major setback for the anti-choice movement.  By allowing courts to weigh the importance of the health benefits of a regulation, it will most likely invalidate most TRAP laws, which usually only marginally advance health while making it more difficult for women to access abortion.  WWH, however, will not stop the anti-choice movement from pressing its fight against abortion in other ways.  It now controls many state legislatures, and more legislation in areas left open by WWH may be expected.

Future health-related regulation will have to hew to the WWH line of providing real benefit, at least if substantially limits access to abortion.  But close questions may still arise.  What if a state has a valid health justification for a regulation that does limit access to abortion, as Jonathan Will notes would occur if a state law that directly promotes women’s health leads to that one clinic closing, as might occur in a state like Mississippi?  Here there would be a substantial burden on access, but given the health benefit of the law, which interest should take priority?  Neither Casey nor WWH are clear on this point.  In my view the question will turn on how great is the health benefit from the requirement.  A state, for example, should be able to close the only clinic in the state if it was as derelict as the Gosnell clinic.  In that case, however, one could show serious danger to women’s health and life that would be comparable or even greater than the risk of childbirth.  If the health benefit is less but still substantial, the question is harder.  Such a situation would call into question whether the state itself must allow even a sub-standard abortion facility even when acceptable facilities exist across a state line. (See Jackson Women’s Health v. Currier.) Continue reading

The Reproductive Rights Case the Supreme Court Decided *Not* to Decide

By Dov Fox

The landmark abortion decision in Whole Woman’s Health v. Hellerstedt eclipsed quieter reproductive rights news out of the Supreme Court at the end of its term. It involves a couple’s claim that the Tennessee Supreme Court violated their equal protection rights by refusing to recognize “disruption of family planning as either an independent cause of action or element of damages.” You won’t have heard about this case. It wasn’t a merits judgment, but a decision not to decide. The Court’s denial of certiorari in Rye v. Women’s Care Center of Memphis has gone all but unremarked. It shouldn’t. This post lays out the arguments and why the Court (most likely) declined to hear it on appeal (without explaining its decision, as standard for cert denials). My updated article out in next year’s Columbia Law Review elaborates on the significance of professional wrongdoing that imposes, deprives, and confounds procreation in the face of people’s best efforts to plan a family.

The dispute arose during Michelle Rye’s third pregnancy. Rye has Rh negative blood, meaning that she produces antibodies that attack the blood cells of a Rh-positive fetus, potentially leading to serious harm in a born child. Doctors nowadays easily prevent this Rh-sensitization by injecting the pregnant woman with a compound called RhoGAM. But Rye’s doctor didn’t give her that injection. Now the couple couldn’t have more children of their own without risking serious health problems. Their Catholic faith took fetal testing and abortion off the table. They couldn’t even use birth control to prevent a risky pregnancy. Rye and her husband sued the doctor (who admitted negligence) for disrupting their family plans. Tennessee courts, all the way up to the state’s Supreme Court, rejected their claim. The courts held that the couple had not suffered the kind of injury that would support a legal cause of action. The Ryes’ petition to the U.S Supreme Court argued that the state Court’s refusal to recognize their claim denied them equal protection under the law. Continue reading

Surrogacy Contracts, Abortion Conditions, and Parenting Licenses

By Dov Fox

Everything went fine the last time for Melissa Cook, when the 48-year old mother of four carried a child for a family back in 2013 to supplement her office job salary. This time was different. First were the triplets. She had been impregnated with three embryos, created using eggs from a 20-something donor and sperm from the intended father who paid for everything. Then, it was that the man, Chester Moore, turned out to be a deaf 50-year-old postal worker who lived with his parents. Finally, was that Moore asked Cook to abort one of the fetuses. He said that he had run out of money to support a third child and worried the high-risk multiple pregnancy would endanger the health of any resulting children.

Cook, who is pro-life, refused. A battle over parental rights of the triplets, all boys, began even before they were born (prematurely, at 28 weeks). Moore argued that his surrogacy contract with Cook, explicitly enforceable under California law, made clear that he was the sole legal parent. Cook sued for custody, notwithstanding her prior agreement that any children resulting from the pregnancy would be his to raise. She argued that the statute, by authorizing private contracts for gestation of a human being, reduces children to “commodities” for sale, and a surrogate like her to a “breeding animal or incubator.” Continue reading

Uterus Transplants: Challenges and Potential

[Cross posted at the OUPBlog]

By John A. Robertson

The birth of a healthy child in Sweden in October, 2014 after a uterus transplant from a living donor marked the advent of a new technique to help women with absent or non-functional uteruses to bear genetic offspring. The Cleveland Clinic has now led American doctors into this space, performing the first US uterine transplant in February, 2016 as part of an Institutional Review Board (IRB)-approved series of ten transplants using cadaveric donors. Dallas and Boston medical centers have also been approved for this program, as will other programs as progress continues. An estimate of 50,000 American women are potential clients.

The path to womb transplants, however, will not be easy. On 7 March, the Cleveland Clinic celebrated its transplant with a media announcement full of joy and celebration. Two days later in a decidedly different key, the Clinic informed the world that the organ was surgically removed because the recipient had “suddenly developed a serious complication.” One can only imagine the disappointment of the patient and medical team, who had smiled so happily in media coverage. Of course, early failure is not surprising with innovative surgery, and no doubt the Cleveland clinic will proceed with other patients. The case is a reminder that the road to success is long, and initial steps should be closely monitored by IRBs, as is occurring in Cleveland, Sweden, and elsewhere. Continue reading

Fetal Personhood and the Constitution

By John A. Robertson

The Rubio-Huckabee claim that actual and legal personhood start at conception has drawn trenchant responses from Art Caplan on the medical uncertainty of such a claim and David Orentlicher, drawing on Judith Thomson’s famous article, that even if a fetus is a person, woman would not necessarily have a duty to keep it in her body.

Their debate claim that the fetus is already a legal person under the constitution also deserves a response, for it has no basis in positive law.  In Roe v. Wade all nine justices agreed that the use of “person” in the Constitution always assumed a born person, and therefore that the 14th Amendment’s mention of person did not confer constitutional rights until after a live birth.  In the years since Roe, when the make-up of the court has changed, no justice has ever disagreed with that conclusion, including those who would overturn Roe and Casey. Continue reading

The Undue Burden Test in Texas Abortion Clinic Regulation

By John A. Robertson

[also published on Balkinization]

The Fifth Circuit decision in Whole Women’s Health v. Cole upholding Texas’ law requiring all abortions, including medication abortions, to be performed in a licensed ambulatory surgical center (ASC) by doctors with admitting privileges at nearby hospitals seems outrageous on several counts.  It defies a medical consensus that abortions performed in physician’s offices or licensed outpatient clinics are exceptionally safe.  With the risk of death less than 1% nationally and even lower in Texas, first trimester and many early second trimester abortions simply do not need the extensive sterility precautions and other operating room requirements needed for more invasive procedures. Indeed, colonoscopies, which have a higher morbidity and mortality rate, are permitted in non-ASC settings.

Nor does the admitting privilege requirement appreciably add to safety.  With hospitalists currently taking over care of most patients admitted to hospitals, the same doctor often does not provide both outpatient and hospital-based care, and emergency room doctors are trained to respond to any emergency.  Nor are admitting privileges necessarily an indication of a doctor’s clinical competence.  They are denied or awarded on many grounds unrelated to competency, i.e., likely frequency of future admissions, and thus do not usually impact the quality of outpatient care. Continue reading

Limiting D&E Abortions:  The Kansas Maneuver

By John A. Robertson

Anti-abortion groups have found another way to limit previously legal abortions.  Building on the analysis in Gonzales v. Carhart, the 2007 case upholding the federal partial birth abortion law, Kansas has now prohibited “dismemberment” of fetuses.  This law would ban dilatation and evacuation (D&E) of the uterus by banning piecemeal removal of fetal parts, which is the standard way of performing second trimester abortions.  Several other states have similar legislation in the pipeline.

While 90% of abortions occur in the first trimester when suction aspiration or medication abortions are available, most later abortions occur by D&E, which involves several passes into the uterus with forceps or other instruments to remove the fetus.  The fetus is ripped apart and removed piecemeal.  The Kansas law would require that the fetus first be killed in utero by a KCL injection, and then removed piecemeal.  Alternatively, labor could be induced so that a very early nonviable fetus is delivered whole and dead.  If it is breathing, it is then not resuscitated because it is too immature to survive. Continue reading

Is Nonmedical Sex Selection Always Sexist?

By John A. Robertson

Nonmedical sex selection is a thorny topic. Usually used to favor males, it has harmed women and resulted in sex ratio disparities in India, China, and other nations where son preference is strong. Sex selection is also troubling because it relies on infanticide, abortion, or the discarding of embryos based on their sex.

Since sex ratio imbalances are not a danger in the United States and equal rights and opportunities for women, though imperfect, are increasingly well-established, nonmedical sex selection in some circumstances, e.g., for gender variety in a family, may be more acceptable. That position, however, runs into the claim that any deliberate choice or preference about the sex/gender of offspring, even for a girl, is inherently sexist or gendered (see Glenn Cohen’s recent post). That position, however, is controversial.[1]

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Advance Directives, Rights, and Brain Death Pregnancies

By John A. Robertson

Dr. Jeffrey Ecker, a noted fetal medicine specialist, has an excellent piece on the Munoz case in Texas in a recent NEJM article (“Death in Pregnancy—An American Tragedy”).[1]   He shares the widespread view that brain dead pregnant women should not be maintained over the father or family’s objections.  He does, however, suggest that maintenance may occur with family consent to enable the fetus be born with the best chance of survival.

The burden of his comment is on legal issues and rights.  Because Texas recognizes brain death as legal death, the hospital had acted inappropriately when it relied on the Texas advance directive statute, which limits advance directives when a woman is pregnant, to maintain her over her husband’s wishes. The court ruled that since Ms Munoz was brain dead, the advance directive limitation which applies only to patients who are still alive, did not apply to a pregnant patient who was dead under cardiopulmonary or brain death criteria for death.  His comment deserves laurels for its clear presentation of the statutory conflict and its resolution.

Dr. Ecker, however, like many other commentators, runs into trouble when he says that the hospital’s actions in the Munoz case, even if supported by statute  are “a wrongful usurpation of the rights of individuals,  in this case  … women.”[2]  The problem is his the assumption that there is or should be a constitutional or legal right at Time 1 when competent to issue a legally binding directive at Time 2 when the maker is incompetent and indeed may have a different set of interests or none at all.

But there is no constitutional right to make a directive at Time 1 that binds at Time 2.  Justice Sandra O’Connor concurring in the outcome in Cruzan mentioned a possible 14th Amendment right to appoint a health care proxy to make a decision at Time 2, but no other justice joined her.[3]  Indeed, a constitutional right to make future directives that bind oneself directly or through an agent has no constitutional precedent and poses many problems.

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Two year Old Boy to Inherit 11 Frozen Embryos

By John A. Robertson, Law School, University of Texas at Austin

A new twist on frozen embryo litigation is now before a Dallas probate court facing what to do with 11 frozen embryos after the parents were murdered.  They left no will and gave no instructions to the fertility clinic for disposition if they both died.  Under the Texas intestacy statute the only heir is a two year old boy.  The Master in Chancery appointed by the Probate Court has recommended that the embryos be maintained by the clinic until the two year old heir is 18, at which time he would acquire all rights to their disposition.[1]

Since there is no party asserting a claim over the embryos and their disposition will not affect other estate issues, the Master’s well-reasoned recommendations are likely to be followed by the probate court.  A key point is that there are no Texas or United States cases involving inheritance of frozen embryos when both parties have died and left no instructions with the clinic or in a will.  Almost all litigation in this area involves divorcing couples who want a different disposition than that to which they had agreed (A.Z. v. B.Z.) [2] or have left no instructions at all (Davis v. Davis). [3]  Most courts have refused to enforce prior agreements for use, despite the analytic weakness of the claim that doing so would force the other party, who has willingly provided gametes to create embryos, to procreate against his or her will.

Without a contesting party who provided gametes, the main question under Texas law is whether the embryos were “property” that would pass under the intestacy statute.  Noting that no Texas court had held them to be “property,” the Master also found that no Texas court had found them to be worthless.[4]  Since they can be the subject of an enforcible contract, the Master concluded that they have an implicit value under Texas law.  She recommended that if the probate court does not affirmatively rule that the embryos are  property, it should follow the Davis v Davis decision that they have a quasi-property status “in the nature of an ownership interest” that is subject to probate orders for settlement or distribution of an estate.[5]

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Introducing John A. Robertson

We’re excited to introduce and welcome John A. Robertson as a contributor to our blogging community.

13.06.26, robertson, john

John holds the Vinson and Elkins Chair at The University of Texas School of Law at Austin. He has written and lectured widely on law and bioethical issues. He is the author of two books in bioethics The Rights of the Critically Ill (1983) and Children of Choice: Freedom and the New Reproductive Technologies (1994), and numerous articles on reproductive rights, genetics, organ transplantation, and human experimentation. He has served on or been a consultant to many national bioethics advisory bodies, and is currently Chair of the Ethics Committee of the American Society for Reproductive Medicine. 

Recent publications include:

  • Paid Organ Donors and the Constitutionality of the National Organ Transplant Act, 40 Hastings Constitutional Law Quarterly 221 (2013).
  • Learning the Bad News, in Malignant: Medical Ethicists Confront Cancer at 39 (Rebecca Dresser, ed.; Oxford: Oxford University Press, 2012).
  • Caregivers, Patients, and Clinicians, in Malignant: Medical Ethicists Confront Cancer at 192 (Rebecca Dresser, ed.; Oxford: Oxford University Press, 2012).

Fetal Pain Laws: Scientific and Constitutional Controversy

By John A. Robertson, University of Texas Law School

A new front has opened in the abortion wars with laws that ban abortion at 20 weeks on the ground that the fetus is then capable of feeling pain.  Led by Nebraska in 2011, ten states have passed such laws, and Texas is now considering such a ban. Although affecting less than 1% of the 1.2 million abortions occurring annually in the United States, abortion between 20-24 weeks may be hugely important for women whose fetus has a lethal or severe genetic anomaly or who otherwise find that they cannot continue the pregnancy. If this challenge to Roe v. Wade ‘s viability line (24 weeks) is upheld, it would be an important victory for anti-abortion groups, spur more states to enact such laws, and signal that the Supreme Court is ready to reconsider other aspects of the abortion right.

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John Robertson on Cohen and Adashi on Made-to-Order Embryos for Sale

By John Robertson

Glenn Cohen and Eli Adashi have an interesting Sounding Board piece in the latest NEJM[i] on made-to-order embryos for sale.  A California clinic offering this option has garnered enormous publicity.  It might, however, have stimulated more bioethical thinking than actual demand for its services.

On the bioethical side, Glenn and Eli survey the relevant issues and conclude that what is most “new and unique here is the lack of clear legal guidance as to the parentage of the embryos in question.”[ii]  My impression is different– existing laws give sufficient support about parentage, if anyone wants to use them.  The clinic creating the embryos from separate gamete donations will have dispositional control of them, but no parenting questions arise until the embryos are gestated and brought to term.  True, there are few state laws on embryo donation as such. But in states with no specific embryo donation laws, those who have commissioned gestation will most likely have rearing rights and duties once a child is born until they arrange for an adoption.[iii]

Nor would the gamete donors in such states be able to claim rearing rights or be subject to rearing duties after such a birth.   Most states recognize gamete donor relinquishment of rearing rights and duties in resulting children with their consent to donation.  After the birth of a child, the gamete donors ordinarily would have no right to change their mind and acquire rearing rights or be subject to rearing duties, whether the donation was of sperm or egg separately or both combined into an embryo.

One aspect of this transaction that is ethically unique is that divvying up embryos created from the same egg and sperm donor would lead to different recipients giving birth to full rather than half siblings, as is the usual situation with gamete donation (it could happen with excess embryos donated after successful IVF by an infertile couple, but that is rarer). Whether it creates a higher risk of full sibling consanguinity would depend on clinic practices in distributing embryos from the same batch to different recipients.  As Glenn and Eli note, donor registries might solve this problem, but none yet exist in the United States.

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John Robertson on “Is Selective Reduction Covered by State Abortion Law?” (Online Abortion and Reproductive Technology Symposium)

By John Robertson

The meeting at Rutgers-Camden on convergences and divergences between abortion and assisted reproduction (to use Glenn Cohen’s term) was stimulating and interesting on many fronts.  To pick up on one such issue, must physicians who reduce pregnancies to twins or singletons comply with state regulations for abortion?  Many of us thought that they were probably covered, even if they view themselves differently than physicians at abortion clinics.

In fact, selective reductions might not fit all state definitions of abortion.  Texas defines abortion as “the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant with the intention that the termination of the pregnancy by those means will, with reasonable likelihood, cause the death of the fetus.”  Texas Health & Safety Code # 171.002.

Since protection of fetuses is a main purpose of such statutes, a natural reading of the statute would be to view the termination of the pregnancy of a particular fetus, as occurs with selective reduction, to be covered.  On the other hand, precision in language is also necessary.  Since the intention of the physician is not to terminate the entire pregnancy, one could argue (perhaps with less support) that selective reduction where at least one fetus remains and the pregnancy continues is not covered.  Under prevailing notice jurisprudence, there is a plausible argument that this definition doesn’t give reasonable physicians, enforcers, or patients fair notice that selective reduction is covered by abortion statutes. (Of course, the legislature could easily revise the statute).

As a practical matter, a physician doing such procedures might prudently following state law in all respects, such as informed consent, 24 hour waiting periods, ultrasound if required, notice of adoption alternatives, etc. to avoid trouble.  There may, however, be situations in which compliance with such requirements in this already heavily freighted emotional context is especially onerous.  There may also be questions as to whether it extends to postviability abortions, where selective reduction is done to protect the health of other fetuses or newborns, though many of those cases might fall within the mother’s health exception.

In the end, the greatest importance of this question is to enrich the discussion and make us aware of the different situations that bring women to termination choices.  If one such path is through assisted reproduction, it reminds us that much more attention needs to be paid to hyperstimulation and transfer protocols so that the need for to “reduce” pregnancy is itself reduced.  Would laws that limit embryo transfer be constitutional?  Probably not, but that is another discussion.

I would be interested in hearing whether other state statutes are clearer and whether anything beyond what I have mentioned hinges on it.

On Behalf of John Robertson: May Guardians Terminate Treatment Without Judicial Review?

By John Robertson

Legal questions about end-of-life decisions have moved on since the paradigm-setting battles in the 1980’s and 1990’s.  It is now clearly established that a competent person has the right to refuse needed medical treatment and to make binding advance directives about treatment if she becomes incompetent.  Physician-assisted suicide is a policy choice for states, not a constitutional right.  National debate now focuses on providing palliative care rather than high-tech interventions to prolong  fading life.  Cost reduction consistent with these values remain an omnipresent dilemma.

Sticky legal issues, however, remain, particularly with regard to the care of incompetent patients, as a Minnesota trial court recently reminded us (In re the Guardianship of Jeffers J. Tschumy, Hennepin County District Court, Fourth Judicial District, #27-GC-PR-07-496, October 18, 2012).   The question before the court was whether a broad grant of power to a guardian to make decisions about consenting or not consenting to medical treatment includes the power to have treatment terminated that will result in the ward’s death.  While allowing treatment to be withheld in that case, the court decided that only a judge, not the guardian on his own, could make that decision.  An appeal is now pending.

The court’s opinion catalogued the main arguments for each position before coming down on the side of judicial review.  Allowing the guardian to decide without court review was supported by the broad language of powers granted to guardians—to make decision about providing or withholding medical treatment—and the legislature’s failure to list termination of treatment as something that was explicitly denied the guardian (as it had done with certain other procedures).  It would also be quicker and less cumbersome, expensive, and burdensome  both for judges and family members to have guardians empowered to terminate treatment.

On the other side were the argument that the awesome power to end life was not specifically granted the guardian, and the fact that guardians are often appointed years before such decisions must be made.  At that time of appointment there is usually little thought of ending the life at some future time, and guardians so appointed may have not expertise or training in such matters.  The court concluded that until the legislature decided otherwise, a guardian would have to return to court for permission to end treatment that would result in the ward’s death.

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