For the first time, a lawsuit challenging the constitutionality of the Texas Advance Directives Act is actually headed toward adjudication on the merits.
Kelly v. Methodist Hospital, No. 2015-69681 (Harris County, Tex.) is scheduled for trial in January. But the plaintiffs are now seeking a ruling even before that. They have just filed a motion for summary judgment, arguing that there is no need for a trial. The relevant facts are undisputed. Therefore, the judge faces a question of pure law: do the conflict resolution provisions in TADA violate procedural and substantive due process. As I have argued in several publications, they probably do. But plaintiffs may have trouble establishing that Houston Methodist, a private hospital, was engaged in “state action.”
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