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For almost two months, Marlise Munoz has been kept on life support at a Fort Worth hospital even though by all accounts she is brain dead.  However, that hospital claims it can't shut off life support because she is pregnant, and Texas law supposedly doesn't them to turn off the machines until it can be known if a viable fetus can be delivered.  Well, earlier today her husband, Erick, filed a lawsuit to force the hospital to remove her from life support.

Muñoz, 33, has been hospitalized since she was stricken Nov. 26 with what doctors believe was a pulmonary embolism, her husband, Erick Muñoz, has said. She entered her 20th week of pregnancy Jan. 6. The family has not publicly released her hospital records but says she's brain-dead.

“Erick Muñoz vehemently opposes any further medical treatment to be undertaken on the deceased body of his wife,” states the lawsuit filed by attorneys Heather King and Jessica Janicek. “Any claim by John Peter Smith Hospital that it can ignore the requests of Erick and Marlise’s family and continue conducting medical procedures on Marlise’s body is factually and legally groundless.”

“Marlise Muñoz is legally dead, and to further conduct surgical procedures on a deceased body is nothing short of outrageous,” the lawsuit states.

The county hospital in Fort Worth has said its hands are tied by an obscure Texas law that requires pregnant women to be kept on life support until a viable fetus can be delivered, usually after 24 to 26 weeks. JPS is prevented from discussing Marlise Muñoz’ medical condition.

J.R. Labbe, the county hospital system's vice president of communications and community affairs, declined to comment on the lawsuit and referred any questions to the Tarrant County district attorney’s office, which handles cases for the hospital.

Melody McDonald, the spokeswoman for the district attorney’s office, which serves as legal counsel for JPS in a number of civil areas, including informed consent and related issues issued a statement saying that no hearing has been set on the matter but, since litigation is pending, the office would have no comment.

Read the motion here and the accompanying petition for removal of life support here.  The motion argues that since Marlise is brain dead, she is not only clinically dead, but legally dead under Texas law--and the hospital has provided no evidence that suggests otherwise.  Texas law states that when whenever there is "irreversible cessation of all spontaneous brain function," a person is legally dead.  Therefore, the law that supposedly requires JPS to keep Marlise alive doesn't apply.  In essence, Erick is arguing that since Marlise is legally dead, any attempt to keep Marlise alive amounts to desecration of a corpse.  

Erick further argues that even if Marlise isn't legally dead, the state law that supposedly requires JPS to keep her alive is trumped by federal law on two counts.  First, since Marlise was fully competent when she stated on numerous occasions that she did not want to be kept alive if she ever ended up in such a condition, the federal right to privacy gives her the right to refuse medical treatment.  Additionally, the state law runs counter to the Equal Protection Clause of the 14th Amendment, as it subjects pregnant women to restrictions not faced by other women.

It seems like an open-and-shut case, in my book.  Unless JPS can prove that Marlise still has brain function, that's the end of the ball game.  You can't keep someone alive who is already dead.  It's going to be mighty interesting to see what the hospital's arguments are for keeping Marlise alive.

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