Life or Death

The first case I stud­ied in law school was George­town Col­lege v. Jones. This is what hap­pened in that case.

In 1963, a twen­ty-five year old moth­er of an infant child suf­fered a rup­tured ulcer. Her hus­band, Jesse Jones, took her to a hos­pi­tal in Wash­ing­ton, D.C., oper­at­ed by George­town Col­lege. The doc­tors said Mrs. Jones would die unless they admin­is­tered blood trans­fu­sions. Jesse refused con­sent. He and his wife were devout Jehovah’s Wit­ness­es. Cer­tain vers­es in the Bible pro­hib­it the drink­ing of blood, which the Jone­ses inter­pret­ed to mean that blood can­not be used for human con­sump­tion by any means. They believed that a blood trans­fu­sion was tan­ta­mount to drink­ing blood.

The hos­pi­tal felt respon­si­ble for Mrs. Jones’s life. It hired lawyers to seek an emer­gency court order grant­i­ng the doc­tors per­mis­sion to per­form the trans­fu­sions with­out the Jones’s con­sent. The lawyers met with U. S. Dis­trict Court Judge Edward A. Tamm. He denied the request on the grounds that a court order would vio­late the First Amendment’s pro­tec­tion of the Jones’s reli­gious beliefs.

Judge J. Skel­ly Wright

The hospital’s lawyers rushed to Judge J. Skel­ly Wright of the Dis­trict of Colum­bia Cir­cuit Court of Appeals for a review of Judge Tamm’s decision.

Appel­late court judges almost always make their deci­sions based on the writ­ten record in the court below. Judge Wright broke from that con­ven­tion. He tele­phoned the doc­tors at the hos­pi­tal and ver­i­fied that Mrs. Jones would die with­out the trans­fu­sion. He went to the hos­pi­tal and tried to con­vince Jesse to grant con­sent. Jesse refused. The judge spoke with Mrs. Jones. She was so far gone that the only words he could make out were “against my will.”

Father Bunn, Georgetown’s Pres­i­dent, made a fer­vent the­o­log­i­cal argu­ment to Jesse that a trans­fu­sion was not “drink­ing blood” with­in the mean­ing of the Bible vers­es. Jesse stood firm and refused consent.

When Mrs. Jones’s rup­tured ulcer brought her to death’s doorstep, Judge Wright made his deci­sion. He signed an order giv­ing the doc­tors per­mis­sion to per­form the trans­fu­sions; the doc­tors took imme­di­ate action; and Mrs. Jones survived.

In his writ­ten opin­ion, Judge Wright doesn’t cite a case direct­ly on point or oth­er author­i­ty. The clos­ing words of his writ­ten opin­ion explain the basis for his deci­sion. “There was no time for research and reflec­tion. . . . I deter­mined to act on the side of life.”

On the first day of law school, we dis­cussed this case for an hour. The pro­fes­sor then asked how many of us agreed with Judge Wright’s deci­sion. It seemed clear to most of us. All but one raised our hands in agree­ment with Judge Wright.

At the end of the year on the last day of that same class, the pro­fes­sor went over George­town Col­lege v. Jones with us again and asked the same ques­tion: “How many of you agree with Judge Wright’s deci­sion?” No one raised a hand.

What hap­pened to you peo­ple?” he said, smil­ing. But he knew. We all knew. Our first year in law school had for­ev­er changed us. We had learned to think like lawyers.

What does learn­ing to think like a lawyer mean? To the gen­er­al pub­lic, it seems to mean becom­ing a heart­less scum bag, as in: Why do sur­geons pre­fer to oper­ate on lawyers above all oth­er patients? Answer: They have no heart and their butts and heads are inter­change­able. And along the same line, what’s the dif­fer­ence between a vac­u­um clean­er and a lawyer rid­ing a motor­cy­cle? Answer: The vac­u­um clean­er has the dirt bag on the inside. (This is a stu­pid joke, by the way. I’ve nev­er seen a lawyer on a motorcycle.)

Jokes aside, think­ing like a lawyer has got­ten a bum rap. To me, it mere­ly means apply­ing the law to a set of facts with rea­son and log­ic and with­out regard to emo­tions, pre­con­ceived notions, or prej­u­dices. Some­times that works a result that appears heart­less but it is actu­al­ly sen­si­ble in the long run.

In Jones, Judge Wright’s order saved Mrs. Jones’s life only by over­rid­ing her reli­gious beliefs. At first blush, it appears to be the right deci­sion emo­tion­al­ly, but a time-hon­ored say­ing among lawyers is that hard cas­es make bad law. Judge Wright’s deci­sion in these sym­pa­thet­ic cir­cum­stances may be cit­ed as author­i­ty in the next case for the gov­ern­ment to take away a citizen’s right to wor­ship, or not, as they choose. His deci­sion in this hard case could make bad law in the next.

It might not even be the right deci­sion emo­tion­al­ly. Mrs. Jones believed that blood trans­fu­sions would defile her body. Sup­pose she lived out her life believ­ing she was unclean and would burn in hell for eter­ni­ty because she “drank blood.” Per­haps this was a fate worse than death in her eyes. Bet­ter to set the emo­tions aside and make a rea­soned deci­sion on the law.

Clark Hall at UVA

So I raised my hand against Judge Wright’s deci­sion after I’d been taught to think like a lawyer.

But the world turns. Thir­ty years after law school, I held a posi­tion as a com­pa­ny exec­u­tive. One morn­ing, a man I’d nev­er met showed up in my office in tears. He told me he thought we planned to elim­i­nate his job, so he found anoth­er job and resigned. Under our health­care plan, he could have cho­sen to pay the pre­mi­um for our cov­er­age and we would have kept it in place until his new employer’s insur­ance picked him up. He decid­ed not to pay and the cov­er­age lapsed.

His new employ­er changed its mind and decid­ed not to hire him. Short­ly after that, he was diag­nosed with can­cer. With­out treat­ment, he would die with­in a few months. With treat­ment, he would have a fight­ing chance. He didn’t have the mon­ey to pay for the treat­ment, so he begged us to rein­state his health­care cov­er­age. We were self-insured so we didn’t have to con­sult with an insur­ance com­pa­ny. The deci­sion was ours alone. Our ben­e­fits depart­ment had turned him down. He begged me to over­rule them.

He wait­ed out­side my office while I spoke with the Ben­e­fits Direc­tor. In tears her­self, she said, “We can’t do it. The Plan’s lan­guage is clear. He missed the win­dow to extend by a mile. If we give him cov­er­age, the prece­dent may expose us to friv­o­lous claims.”

I’d heard this sto­ry before. Hard cas­es make bad law.

I combed through the plan’s lan­guage. I point­ed to a phrase in the small print. “What about this?”

It doesn’t work,” she said. “It doesn’t apply.”

She was right, but I read the phrase sev­er­al times, try­ing to find a way to stretch it to reach the man’s sit­u­a­tion. Final­ly I said, “I think it applies,” and I signed the doc­u­ment to extend the coverage.

The great­ly relieved Ben­e­fits Direc­tor took the man down­stairs to fill out the forms he need­ed to get treat­ment, and I nev­er saw him again. I learned the fol­low­ing year that he fought hard but lost his battle.

How do I rec­on­cile my hand-vote in the Jones case with my sig­na­ture on that form? I don’t know. All I can say is you kind of had to be there.

That’s the les­son of the Jones case, too, I sup­pose. Judge Tamm ren­dered his deci­sion from cham­bers, sur­round­ed by legal tomes. Judge Wright went to the hos­pi­tal, talked to Jesse Jones, and watched the light fad­ing from a young mother’s eyes while she lay on her death bed. Look­ing into people’s eyes can screw you up. The statutes, case law, and plan lan­guage tend to fall away. Before you know it, you end up think­ing like a human being, for pity’s sake.