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John M. Luce, MD, MSL, FCCP
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From the University of California, San Francisco; and the Division of Pulmonary and Critical Care Medicine, San Francisco General Hospital.

CORRESPONDENCE TO: John M. Luce, MD, MSL, FCCP, Division of Pulmonary and Critical Care Medicine, San Francisco General Hospital, 1001 Potrero Ave, Room 5 K1, San Francisco, CA 94110; e-mail: jluce@medsfgh.ucsf.edu


FINANCIAL/NONFINANCIAL DISCLOSURES: The author has reported to CHEST that no potential conflicts of interest exist with any companies/organizations whose products or services may be discussed in this article.

Reproduction of this article is prohibited without written permission from the American College of Chest Physicians. See online for more details.


Chest. 2015;148(2):e70-e71. doi:10.1378/chest.15-1101
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To the Editor:

In response to my recent article, “The Uncommon Case of Jahi McMath,”1 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 al2 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.3 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 Lobby4 suggests that it may not follow the standard set by Smith in the future, as I noted in my article.1 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.

References

Luce JM. The uncommon case of Jahi McMath. Chest. 2015;147(4):1144-1151. [CrossRef] [PubMed]
 
Olick RS, Braun EA, Potash J. Accommodating religious and moral objections to neurological death. J Clin Ethics. 2009;20(2):183-191. [PubMed]
 
Employment Division, Department of Human Resources v Smith, 494 US 872 (1990).
 
Burwell v Hobby Lobby, 573 US (2014).
 

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References

Luce JM. The uncommon case of Jahi McMath. Chest. 2015;147(4):1144-1151. [CrossRef] [PubMed]
 
Olick RS, Braun EA, Potash J. Accommodating religious and moral objections to neurological death. J Clin Ethics. 2009;20(2):183-191. [PubMed]
 
Employment Division, Department of Human Resources v Smith, 494 US 872 (1990).
 
Burwell v Hobby Lobby, 573 US (2014).
 
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