A tragic scenario has become all too common in hospitals across the United States. Dying patients pray for medical miracles when their physicians think that continuing treatment would render no meaningful benefit. This situation is unfortunately referred to as “medical futility.” In these cases, physicians, who are less likely than their patients to rely on God as a means of coping with major illness, are at an impasse. Their patients request everything be done so that they can have more time for God to intervene, but in the physician’s professional experience, everything will probably do nothing. What is the physician to do? The conundrum is a modern one: medical technologies such as breathing machines and dialysis units can support human bodies almost indefinitely when many of our organs fail. But is there any limit on this technological imperative? Every state and the U.S. Constitution recognize that a patient has the legal right to refuse unwanted treatment, even if it is life-sustaining. However, there is no corresponding constitutional right to demand specific treatments. Further, most states have passed so-called “medical futility statutes.” These statutes make it explicit that physicians have immunity from negligence claims if a physician refuses to offer futile treatment, so long as particular statutory safeguards are met. Even if there is no general legal entitlement to medical care and physicians may be immunized from negligence claims, can the invocation of a state’s medical futility statute violate free exercise under state RFRAs, or the U.S. Constitution? This is the question I address in this article.
First Amendment L. Rev., Vol. 15, No. 43, 2017