High Court Takes Up ‘Baby Doe’ Rules : U.S. Presses for Role in Regulating Care of Handicapped Infants

The Reagan Administration went before the Supreme Court on Wednesday seeking reinstatement of its controversial “Baby Doe” rules allowing the federal government to regulate the care of severely handicapped infants.

In oral arguments in an emotion-charged case, Assistant Atty. Gen. Charles J. Cooper contended that lower courts were “clearly incorrect” in barring the government from interceding to assure that federally funded hospitals do not withhold nourishment or medically indicated treatment from newborns solely because of their handicaps.

‘Baby Doe’ Squads

But an attorney for the American Medical Assn., Ben W. Heineman Jr. of Washington, warned the justices against permitting “federal ‘Baby Doe’ squads” to perform “highly intrusive” investigations of infant treatment in the nation’s hospitals.

And Richard L. Epstein of Chicago, representing the American Hospital Assn., contended that giving the government authority to intervene in the cases of infants would invite federal involvement into life-prolonging treatment for the elderly or “any other seriously ill hospital patient.”

The case (Bowen vs. AHA, 84-1529) centers on the validity of regulations that the Administration issued under the Rehabilitation Act of 1973 in the wake of widely publicized instances in which treatment had been withheld from infants born with severe defects.

The rules provide, among other things, that, if a handicapped baby’s condition permits it, he must receive the same treatment that would be given to a non-handicapped baby. But treatment that only temporarily prolongs the life of a terminally ill infant is not required.

The Administration is being supported by several groups representing the handicapped which contend that technological and educational advances enhancing the lives of disabled newborns have made it imperative that their civil rights be better protected.

Coalition Fights Rules

On the other side is a coalition of national medical and hospital organizations opposed to more governmental involvement in sensitive, highly individual decision-making about proper care for the handicapped. A decision in the case is expected by this summer.

The Administration first issued a set of rules after “Baby Doe,” an infant in Indiana suffering from Down’s syndrome, was allowed to starve to death in 1982 after the baby’s parents decided against life-saving surgery. Hospital authorities had turned to state courts for guidance but judges refused to intervene.

Those regulations were overturned by a federal court, and the Administration sought to invoke a new set of rules in 1983 in the case of “Baby Jane Doe,” a New York infant born with an opening of the spine and an abnormally small head. The girl’s parents had decided against surgery, and the Administration attempted to obtain records to see whether she was being denied treatment solely because of her handicap.

Federal courts refused to grant the government access to the records, but later the parents consented to an operation. The girl is now 2 years old.

Rules Voided by Courts

Meanwhile, medical and hospital groups filed suit challenging the federal regulations, and, in 1984, both a federal district and a federal appeals court in New York struck them down as exceeding the authority of the 1973 act.

The Administration, appealing to the Supreme Court, contended that the act, which bars discrimination against “an otherwise qualified handicapped individual . . . solely by reason of his handicap,” clearly authorizes its rules protecting infants.

In Wednesday’s hourlong hearing, several justices expressed concern over whether Congress intended to permit such federal intervention into an area historically regulated by the states.

Additional Law Enacted

In 1984, Congress enacted a separate law requiring federally funded state child protective agencies to be ready to receive and act on reports of a hospital’s withholding medical treatment from handicapped infants. But the law did not impose any direct obligation on hospitals themselves to provide such treatment.

Cooper sought to minimize the intrusive effect of the Administration’s regulations. But, when asked by Justice Byron R. White whether the federal government would be “looking over the shoulder” of doctors and hospitals to detect discrimination, Cooper replied that that was “certainly true” if they were using “impermissible criteria” in withholding treatment.