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HARVARD MEDICAL ETHICISTS CHALLENGE COURT RULING ON LETHAL INJECTION IN ALABAMA CASE

-Experts from Harvard and other institutions say ruling in death penalty case would have a chilling effect on physicians’ willingness to serve as experts in capital punishment trials

Court orders demanding death row inmates to provide “specific, detailed and concrete alternatives” to a state’s lethal injection protocol compel those inmates to produce evidence that is impossible to obtain without forcing physicians and other clinicians to violate their medical ethics, according to Harvard bioethicists and legal experts.

Such orders, therefore, the experts argue, pose an insurmountable hurdle for inmates seeking alternative methods of execution.

These are two of the central arguments outlined in a recent amicus brief (or “friend of the court”) submitted to the United States Court of Appeals for the Eleventh Circuit by a group of scholars from the Harvard Medical School (HMS) Center for Bioethics, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics (the Petrie-Flom Center) at Harvard Law School, and other institutions.

To offer an alternative drug regimen for a lethal injection, an inmate’s lawyers would have to solicit input from medical professionals. Such involvement, however, would clash with the basic principles of medicine and violate medical ethics, the experts argue in their brief. Such orders, they add, would also have a chilling effect on physicians’ willingness to serve as experts in capital punishment cases.

“In the face of such orders and the ethical dilemmas to which they give rise, medical professionals likely would decline to serve as expert witnesses in lethal injection cases in the first place, robbing the parties and the courts of appropriate expert testimony that would assist them in accurately adjudicating the important constitutional issues this and similar cases present,” the authors write in the brief.

The case in question involves Alabama death row inmate Thomas D. Arthur, whose execution is scheduled to take place on Nov. 3. 

Arthur, who maintains his innocence, is scheduled to die by lethal injection. He claims that the State of Alabama’s current lethal injection protocol would cause agonizing pain because it does not provide adequate sedation, and also because the medication would induce a heart attack due to a preexisting cardiac condition. Arthur’s lawyers have argued that this method of execution would violate the Eighth Amendment of the U.S. Constitution, which protects against cruel and unusual punishment. 

In July, the district court judge ruled that Arthur had failed to comply with a court order requiring him to provide “specific, detailed, and concrete alternatives or modifications” to Alabama’s lethal injection protocol that included “precise procedures, amounts, times and frequencies.”

Robert Truog, director of the HMS Center for Bioethics, and I. Glenn Cohen, professor of law at Harvard Law School and faculty director of the Petrie-Flom Center, two of the brief’s authors, have been at the forefront of this issue for several years.

“To our knowledge, no code of ethics for any health care profession anywhere in the world condones the participation of its members in executions," Truog and Cohen wrote in a 2014 article published in JAMA.

The American Medical Association contends that physician participation in state-sponsored execution violates physicians’ oaths to protect human life and erodes public confidence in the medical profession. According to the AMA, participation in an execution is defined by actions that would directly cause the death of the condemned; would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; or could automatically cause an execution to be carried out on a condemned prisoner.

The brief further makes it clear that even suggesting an alternative to a lethal injection protocol would go contrary to medical ethics. Requiring such evidence from inmates poses an impossible burden on them, the experts conclude.
 

The Harvard Medical School Center for Bioethics
The Harvard Medical School Center for Bioethics was launched to ensure that values and ethics are always part of medical training, laboratory and clinical research, and professional education. The Center’s mission is to bring together the rich intellectual resources of the medical school faculty with health professionals and scientists from our affiliated teaching hospitals, departments across Harvard, and colleagues from other institutions worldwide to ensure that scientific progress, medical therapeutics and health care practices proceed hand-in-hand with reflection about the profound moral questions raised by advances in the life sciences.

The Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School
The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School was founded in 2005 through a generous gift from Joseph H. Flom and the Carroll and Milton Petrie Foundation.  The Center’s founding mission was to promote interdisciplinary analysis and legal scholarship in these fields. Today, the Center has grown into a leading research program dedicated to the unbiased legal and ethical analysis of pressing questions facing health policymakers, medical professionals, patients, families, and others who influence and are influenced by health care and the health care system.  To achieve this goal, the Center fosters a community of leading intellectuals, practitioners, and policymakers from a variety of backgrounds at all stages in their careers, across Harvard University and across the world.  

Harvard Medical School
Harvard Medical School (http://hms.harvard.edu) has more than 9,500 full-time faculty working in 10 academic departments located at the School’s Boston campus or in hospital-based clinical departments at 15 Harvard-affiliated teaching hospitals and research institutes: Beth Israel Deaconess Medical Center, Boston Children’s Hospital, Brigham and Women’s Hospital, Cambridge Health Alliance, Dana-Farber Cancer Institute, Harvard Pilgrim Health Care Institute, Hebrew SeniorLife, Joslin Diabetes Center, Judge Baker Children’s Center, Massachusetts Eye and Ear/Schepens Eye Research Institute, Massachusetts General Hospital, McLean Hospital, Mount Auburn Hospital, Spaulding Rehabilitation Network and VA Boston Healthcare System.