Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated. Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience. This conference identified the various ways in which law intersects with religion and health care in the United States, examined the role of law in creating or mediating conflict between religion and health care, and explored potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

1. Brain
Death
Rejected:
Expanding
Clinicians'
Legal
Du:es
to
Accommodate
Religious
Objec:ons
and
Con:nue
Physiological
Support
Petrie-­‐Flom
Center
for
Health
Law
Policy,
Biotechnology,
and
Bioethics
at
Harvard
Law
School
●
Annual
Conference:
Law,
Religion,
and
Health
in
America
●
May
8,
2015
Thaddeus
Mason
Pope,
J.D.,
Ph.D.
Hamline
University
Health
Law
InsMtute

2. 2
End
of
life

4. 4
Pa:ent’s
CBO

5. 5
Roadmap

6. 6
1. Legal
status
of
brain
death
2.
Religious
objec:ons
to
brain
death

7. 3. DuMes
to
accommodate
objecMons
4.
Reasons
to
extend
accommodaMon
laws

8. 8
Legal
status
of
brain
death

10. All
56
US
jurisdicMons
(narrow
excepMon
in
NJ)

11. 11
UDDA

12. An
individual
.
.
.
.
.
is
dead
.
.
.
who
has
sustained
either
(1) irreversible
cessaMon
of
circulatory
and
respiratory
funcMons,
or
(2) irreversible
cessaMon
of
all
funcMons
of
the
enMre
brain

16.
total
brain
failure
=
death

17. Legally
seGled
since
1980s

18. Remains
seled
(legally)

19. “durable
worldwide
consensus”
Bernat
2013

20. 20
Clinician
du:es
aHer
death

21. “A_er
a
paMent
.
.
.
brain
dead
.
.
.
medical
support
should
be
discon:nued.”

22. Consent
not
required
to
stop
physiological
support

23. Not
a
paMent
Dead

24. Not
a
paMent
No
duty
to
treat

27. 27
Religious
objec:ons

28.
total
brain
failure
=
death

29. Not
dead
unMl
heart
or
breathing
stops

30. Orthodox
Jews
Japanese
Shinto
NaMve
Americans
Buddhists
Muslim
(some)

31. 31
Du:es
to
accommodate
objec:ons

33. CA
IL
NY

34. “Each
hospital
shall
establish
.
.
.
procedure
for
the
reasonable
accommoda:on
of
the
individual's
religious
.
.
.
objecMon.
.
.
.”
10
N.Y.C.R.R.
§
400.16(e)(3)

35. No
duty
treat
Dead

36. No
duty
treat
Dead
NY
CA
IL
change
this

37. Imposes
duMes
to
“treat”
aHer
DDNC

38. Limited

39. “reasonably
brief
period”

40. <24
x
x
x
x
24
x
x
x
x
x
x
36
48
x
72
x
x
x

41. NJ

42. Opposite

43. No
duty
treat
Dead
NJ
changes
this

44. Changes
definiMon
itself

45. “[D]eath
.
.
.
shall
not
be
declared
upon
the
basis
of
neurological
criteria
.
.
.
when
.
.
.
violate
the
personal
religious
beliefs
.
.
.
.”

46. No
death
by
BD
Religious
objecMon

47. No
death
by
CP
VenMlato
r

48. Indefinite
accommodaMon
(unMl
death
by
CP
criteria)

49. Narrow
excep:ons
in
4
states

50. Accommoda:on
denied
elsewhere

51. Motl Brody (DC)

52. 52
Shahida
Virk
(Mich.)

54. Cho Fook Cheng (Mass)

56. Extend
du:es
to
accommodate

57. 1.
BD
imposes
on
profound
beliefs

58. 2.
AccommodaMon
has
worked
for
decades
in
4
populous
states

59.
No
complaints

60. 3.
DuMes
are
limited

61. Frequency

62. Brain
death
<
1%
hospital
deaths

63. 0.3
Japanese
Shinto
0.3
Orthodox
Jew
0.3
NaMve
American
0.7
Buddhist

64. 2%
of
1%
=
0.0002
1
in
5000
deaths

65. 400
cases
naMonwide
annually
Most
in
CA,
NY,
IL,
NJ

66. Type

67. “hospital
is
required
to
conMnue
only
previously
ordered
cardiopulmonary
support.
No
other
medical
intervenMon
is
required.”

68. DuraMon

69. 69
24
h

70. “in
determining
what
is
reasonable,
a
hospital
shall
consider
.
.
.
needs
of
other
pa:ents
.
.
.
.”

71. 4.
Brain
death
conceptually
flawed

72.
total
brain
failure
Death
=

75. Value
laden
judgment
about
when
it
is
worthwhile
to
conMnue
physiological
support

76. uniformity

78. Only
NJ
changes
who
is
dead
CA
–
IL
–
NY
accommodaMon
does
not
threaten
uniformity

79. 79
Thaddeus
Mason
Pope
Director,
Health
Law
InsMtute
Hamline
University
School
of
Law
1536
Hewi
Avenue
Saint
Paul,
Minnesota
55104
T
651-­‐523-­‐2519
F
901-­‐202-­‐7549
E
Tpope01@hamline.edu
W
www.thaddeuspope.com
B
medicalfuMlity.blogspot.com

80. 80
References

81. Medical
Fu:lity
Blog
Since
July
2007,
I
have
been
blogging,
almost
daily,
to
medicalfu:lity.blogspot.com.
This
blog
is
focused
on
reporMng
and
discussing
legislaMve,
judicial,
regulatory,
medical,
and
other
developments
concerning
medical
fuMlity
and
end-­‐
of-­‐life
medical
treatment
conflict.
The
blog
has
received
over
850,000
direct
visits.
Plus,
it
is
distributed
through
RSS,
email,
Twier,
and
re-­‐
publishers
like
Westlaw,
Bioethics.net,
Wellsphere,
and
Medpedia.
81

82. Brain
Death
Rejected:
Expanding
Clinicians'
Legal
DuMes
to
Accommodate
Religious
ObjecMons
and
ConMnue
Physiological
Support,
invited
manuscript
for
2015
Annual
Conference
Law,
Religion,
and
American
Healthcare,
PETRIE-­‐
FLOM
CENTER
FOR
HEALTH
POLICY,
BIOTECHNOLOGY,
AND
BIOETHICS,
HARVARD
LAW
SCHOOL
(May
2015).
Brain
Death:
Legal
DuMes
to
Accommodate
Religious
ObjecMons
147
CHEST
__
(2015).

83. Legal
Aspects
of
Brain
Death
DeterminaMon,
in
35
SEMINARS
IN
CLINICAL
NEUROLOGY:
THE
CLINICAL
PRACTICE
OF
BRAIN
DEATH
DETERMINATION
(forthcoming
2015)
(with
Christopher
Burkle).
Review
of
Death
before
Dying:
History,
Medicine,
and
Brain
Death
(OUP
2014),
36
JOURNAL
OF
LEGAL
MEDICINE
(forthcoming
2015).
Legal
Briefing:
Brain
Death
and
Total
Brain
Failure,
25(3)
JOURNAL
OF
CLINICAL
ETHICS
245-­‐257
(2014).

84. Pregnant
and
Dead
in
Texas:
A
Bad
Law,
Badly
Interpreted,
LOS
ANGELES
TIMES
(Jan.
16.
2014)
(with
Art
Caplan).
Legal
Briefing:
Organ
DonaMon,
21(3)
JOURNAL
OF
CLINICAL
ETHICS
243-­‐263
(2010).