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Old Baby Doe rule struck down, but ....

Old Baby Doe rule struck down, but . . .

In 1984 the Secreary of Health and Human Services (HHS) enacted regulations to ensure that health-care providers did not withhold beneficial medical treatment or nutrition from newborns solely on the basis of an impairment, except when doing so would "only prolong the act of dying." Known as the Baby Doe rule (SN:1/21/84, p.47), it was prompted by a case in which parents had recommended that, through the withholding of corrective surgery, their seriously disabled newborn be allowed to die. In justifying its regulations, HHS said they were a natural extrapolation of the Rehabilitation Act of 1973, which prohibits discrimination against the handicapped by institutions or programs receiving federal funds. But in a 5-to-3 ruling handed down last week, the Supreme Court affirmed an appellate court finding that HHS had improperly based its Baby Doe rule on the Rehabilitation Act.

Although the Supreme Court's action effectively strikes down the HHS regulations, it may not have much, if any, impact. For almost two years, HHS has had an alternative Baby Doe rule on the books (SN:10/20/84, p.245)--based on a different public law. And according to HHS, this rule is unaffected by the Supreme Court ruling.

In explaining the new Supreme Court ruling, Justice John Paul Stevens wrote that to have proved that discrimination was an issue--which was essential if HHS was to justify its Baby Doe rule under the Rehabilitation Act--the agency would have had to demonstrate that hospitals were unwilling to perform lifesaving measures. In fact, Stevens writes, the evidence presented shows that in the case that prompted the regulations, the hospital had "at all times been willing to perform the surgical procedures in question, if only the parents . . . would consent."

HHS has still not decided whether it will attempt to rewrite the now-struck-down rule, according to Chuck Kline, an agency spokesperson. Among other things, the rule gave the federal government a much bigger role in policing the welfare of handicapped infants. As amendments to the Child Abuse Prevention and Treatment Act of 1974, the newer, unaffected Baby Doe regulations give state child-abuse agencies primary enforcement responsibilities.
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Publication:Science News
Date:Jun 21, 1986
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