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O'Reilly Flip-Flops, Defends Texas Law That Allows Baby Sun Hudson to Die

Reported by Marie Therese - March 24, 2005

Bill O'Reilly ran a segment yesterday (3/23/05) on the state-sanctioned termination of the life of 5-month-old Sun Hudson over the objections of his mother, Wanda, an indigent African-American resident of Houston, Texas. O'Reilly interviewed William Winslade, Ph. D, a bioethicist at the University of Texas-Galveston and Mario Caballero of Lone Star Legal Aid, who is Ms. Hudson's attorney.

On the TV screen the first image the FOX viewer would have seen was a three-part division of the screen. As usual, O'Reilly appeared on the left-hand side (is anyone snickering yet?). There were two right-hand windows.

In the upper right window, the head and shoulders of William Winslade, Ph. D. Mr. Winslade was the quintessential white-haired, bespectacled Anglo lawyer outfitted in a neatly pressed suit, cool and collected, seated in the traditional law library, books to the ceiling, complete with a bust of an important personage in the background.

In the lower right window, Mario Caballero, by contrast, was dressed in a cheap suit, button-down blue shirt, not-so-perfect tie, beads of sweat on his forehead, seated in front of a round window looking out on Houston (I assume). He spoke with a slight but definite accent. In the course of the interview, however, the viewer would realize that this man was genuinely caring and, according to the Houston Chronicle, a surprisingly effective advocate for people who usually get lost in the shuffle.

In the transcript that follows, Bill O'Reilly argues in favor of a Texas law that contradicted what he said in his Talking Points Memo earlier in the show, i.e., "The secular philosophy believes the state has the right to make life-death decisions. The Christian philosophy believes the opposite, that man should not interfere in the life cycle, ever." (TPM, 3/23/05)

Texas law specifies that in some life-and-death cases doctors and a state-sanctioned ethics board may pull the plug on a patient over the objections of the guardian. This law - entitled the Advance Directives Act - was signed into law in 1999 by Governor George W. Bush. Although O'Reilly did his best to absolve Bush by claiming that there was a later amendment that formed the basis of the Sun Hudson case, a Knight-Ridder story in the Seattle Times does not see it the same way.

From the Seattle Times, 3/22/05:

"In 1999, then-Gov. Bush signed the Advance Directives Act, which lets a patient's surrogate make life-ending decisions on his or her behalf. The measure also allows Texas hospitals to disconnect patients from life-sustaining systems if a physician, in consultation with a hospital bioethics committee, concludes that the patient's condition is hopeless.

"Bioethicists familiar with the Texas law said yesterday that if the Schiavo case had occurred in Texas, her husband would be the legal decision-maker and, because he and her doctors agreed that she had no hope of recovery, her feeding tube would be disconnected.

"'The Texas law signed in 1999 allowed next of kin to decide what the patient wanted, if competent,' said John Robertson, a University of Texas bioethicist.

******

"The White House said yesterday that Bush's position is consistent, and that the Texas bill focused on expanding the rights of the critically ill and their families to prevent hospitals and doctors from denying life-saving treatment.

"Under the 1999 law, another White House official said, Bush expanded that time to 10 days and authorized family members to seek extensions in court, but acknowledged that if the challenges fell short, 'under the legislation, the hospital still could authorize the end of life.'

"In Texas, Bush's position also had the backing of the Texas Right-to-Life Association, whose national headquarters, along with other Christian conservatives that make up a key part of the Republican base, has taken up the fight to prolong Schiavo's life as a cause célčbre.

"Burke Balch, director of the Powell Center for Medical Ethics at National Right-to-Life in Washington, said he represented the Texas chapter in more than two dozen negotiating sessions over the 1999 bill. He acknowledged that the legislation could allow a hospital to move to end a patient's life over the family's wishes but denied that was inconsistent with Bush's positions now, or his own group's as well."

Here is my transcript of the tripartite interview.

O'REILLY: With the Schiavo case getting massive attention, the plight of Baby Sun Hudson has gone largely unnoticed. The 5-month-old Texas boy was ordered removed from a ventilator over the objections of his mother, Wanda Hudson, and he died shortly after that. That was allowed to happen because Texas has a law which allows medical personnel to make the final call over life and death and the baby had a genetic disorder that prevented his lungs from growing. Damali Keith, a reporter for FOX 26 in Houston, spoke with Mrs. Hudson.

Video clip of Wanda Hudson: "I was holdin' my son and they took him off the ventilator and he breathed his last breath...."

DAMALI KEITH (voiceover): "In a private room in intensive care, five-and-a-half month old Sun was removed from life support, bringing his short life to an end."

WANDA HUDSON: "He opened his eyes while he was in my arms before they took him off the ventilator. He smiled ... "

KEITH (voiceover): "Wanda Hudson spent the last hours of her son's life here at Texas Children's Hospital, holding him."

HUDSON: "I talked to him. I told him I love him. I told him that we'll always be together."

KEITH (voiceover): "The body was taken off life support, after a long legal battle. Texas Children's wanted to end the baby's quote "suffering" because hospital officials say Sun was born with a fatal condition where his lungs would never fully grow. But the baby's mother says she doesn't believe in sickness. She does, however, believe that her baby was a gift from the Sun."

HUDSON: "The Sun that shines in the sky revealed himself to me ..."

KEITH (voiceover): "Hudson says after the ventilator was removed, she held onto her baby as long as she could."

HUDSON: "I was holdin' him, huggin' him, kissin' him, tellin' him I loved him still."

KEITH (on camera): "Hudson says a funeral is being planned for her baby boy, but she says she won't attend because she doesn't believe in death."

END video clip.

O'REILLY: Joining us now from Houston is William Winslade, a bioethicist, who teaches at the University of Texas-Galveston and Mario Caballero, the attorney representing Wanda Hudson. The law's pretty clear in Texas, counselor, that the medical authorities have a right to do what they did to Baby Sun. What was your - what was your contention in the matter? How did you try to save the baby?

CABALLERO: Well, one of the things that we did - we tried several ways of trying to keep him alive, but one of the arguments was that the hospital had not stabilized the child enough to allow for a transfer, a safe transfer, to another facility. The other one was that the child was still under emergency care and Texas law prohibits persons who need emergency care and who don't have the resrouces to pay for them, to remain under the care of the hospital. And we also argued that we wanted an extension of time to permit a transfer to occur.

O'REILLY: Alright. But you didn't dispute the fact that the child's lungs weren't gonna grow and that ultimately he was gonna die?

CABALLERO: Well, yes, we did and, in fact, we subpoenaed the doctors from the hopital to present themselves in court and to explain the condition of the child including the futility argument that the hospital was putting forth. The hospital moved to quash the subpoenas. They barred the testimony from any of their doctors. The judge agreed with them and prevented any kind of ... evidentiary hearing and that was one of the problems that we had, and on appeal we argued that that was wrong, among other things that happened in the courtroom.

O'REILLY: Alright. Mr. Winslade, how do you see this? If what the counselor is saying is true, the baby might have survived. Is there one chance that the baby could have survived, in your opinion?

WINSLADE: There was virtually no chance that the baby would survive. But, what is troubling is that this case ended up as a legal battle rather than something that one would hope could be negotiated and mediated without going into the courts. Unfortunately, that didn't happen, but this baby was destined to die.

O'REILLY: Alright. But it's almost like the Schiavo ... case ... You know, you want the families to cooperate and all of that. They don't. It goes into court.

[COMMENT: It seems to me that what Mr. O'Reilly is implying here is that an indigent, excitable, eccentric, uninsured black woman didn't just roll over and play dead. She had the gall to challenge the powers-that-be and question a law that, in reality, consigns poor people to the morgue, while rich and middle-class people, who have insurance or other means, can keep their loved ones hooked up to machines indefinitely! Ms. Hudson and Mr. Caballero fought long and hard for Baby Sun and, in the process, stepped on the toes of the Texas power-brokers.]

O'REILLY (continued): But Texas is different from Florida law and this is interesting. I want to tell everybody that then-Governor Bush in Texas signed the Advanced Directives Act, which made a patient's guardian the end-of-life decision-maker. Four years later in 2003 that law was amended to allow doctors to make the final call. Why did that happen?

WINSLADE: Bill, that's not, that's not quite correct. It allows the doctors to say that in their professional opinion that they don't believe it's medically appropriate to continue the life support. But they don't make the final decision.

O'REILLY: Well, it goes to a Medical Ethics Board then, right?

WINSLADE: And the Ethics Board - and, if the Ethics Board agrees with the physicians, then they tell the patient's representative that they are free to transfer the patient to another facility willing to take care of them, but that hospital and those physicians will not continue the life support beyond a certain point.

O'REILLY (overtalks last 4 words): OK. But, very rarely does another hospital accept that kind of a patient, as you know, so it's almost a death sentence to get - if the bio - I'm not disputing the law. I mean, if you have doctors and then it goes before a Board and they said "Look, you've gotta go with the medical people" - that was my Schiavo thesis in the beginning. Now, counselor, do you feel that your client's - Wanda's - rights were violated here and the baby's rights were violated? Because, I don't know if another hospital would have taken this baby. Did you have another hospital lined up?

CABALLERO: Well, we tried to get a transfer to happen. Part of the problem with transferring a person from one hospital to another is that the hospitals are the ones that - they don't take a transfer request from an individual.

O'REILLY: Right.

CABALLERO: It has to come from the hospital. The hospitals communicate to each other and we were having an adversarial relationship with the hospital [Texas Children's]. But the, the - I think her rights were violated. These are decisions that the mother ought to make. And what we really have here is not an ethical issue but it was a financial issue.

O'REILLY (overtalks last 6 words): But, let me, let me interrupt you here. Let me interrupt you here.

[COMMENT: Here is where I noticed something about the editing of this interview and, by extension, other FOX interviews. Mr. Caballero spoke somewhat softly, or at least it appeared that way on my TV. However, when his window was full-screen, I could make out what he was saying, even if O'Reilly overtalked him offscreen. However, I noticed at this juncture in the interview, as he was saying the words "And what we have here is not an ethical issue, but it was a financial issue" - clearly words that FOX News would not want its viewers to hear - it was easy for FOX to shrink his window so that O'Reilly's voice would dominate. Consequently, FOX viewers did not ever really hear Mr. Caballero's statement about the financial component of this case, unless they did what I did, taped it and jogged back and forth several times to determine what Mr. Caballero actually said. I wondered to myself if this was done deliberately by the editing departmant or if it was just a coincidence.]

O'REILLY (continued): You saw - we saw Wanda and she's obviously distraught and anybody would - but she doesn't believe in death and still feels the baby's alive. So, I'm tryin' to say to myself, if the baby's gonna dies, there's no hope for the baby, as all the doctors said, the Medical Board, you know, do you have to then keep the baby alive, because the mother won't accept the verdict? That's basically what it's about, isn't it?

CABALLERO: Well, I think the doctors oughta put themselves up on the stand and explain why they felt that the child was not gonna make it. There have been survivors of the disease that the child had and the child continued to live to the very last day. The reason the child died was because the hospital removed life support from the child,

O'REILLY (overtalks last 9 words): Yeah, but he - but he lived on a ventilator and wasn't gonna get off it. I'm gonna give Mr. Winslade the last word. Do you think justice was done for Baby Sun?

WINSLADE: I think that Wanda Hudson had every opportunity to have her case heard before the courts. Mr. Caballero (which he pronounced "Capalliero"] did an excellent job of representing her interest. But in the end I think the right thing was done, sad though it was.

O'REILLY: Alright. Gentlemen, thanks very much. We appreciate it and again each state has a different law about right-to-die.


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