Restore Terry Schiavo's Rights!

Published Mar 21, 2005

The case of Terry Schiavo, currently playing itself out in the Federal courts, is a sad one. I can understand the positions of both Terry’s husband — that her feeding tube should be removed — and of her parents — that Terry’s life should be prolonged. What I can’t understand is Congress’s need to involve themselves in this case. The involvement of the Federal and Florida Legislatures is a simple violation of both Terry and Michael’s rights, and a frightening violation of the seperation of powers enshrined in our Constitution. Per the decision of several courts, Terry should have her feeding tube immediately removed.

This is a weighty statement to make. As courts have said in the past, when there’s doubt, the decision must be made in favor of life. Even taking that into account, removing the tube is reasonable:

• It is both legal and ethical to remove life-prolonging treatment
• Terry has no hope for recovery
• Terry’s parents have been heard, Terry’s husband has been heard, and, to the extent possible, Terry has been heard
• A dispassionate decision has been made by a neutral party — the court — and has been upheld by higher courts

Schiavo’s case has moved beyond these reasonable, ethically- and medically-focused considerations, to be tried in the court of public opinion. The behavior of those who claim to support Terry has been execreable:

• The Schindlers, Mary’s parents, have repeatedly behaved unethically towards her husband
• The Florida and Federal Legislatures’ decision to intervene is, Constitutionally speaking, frightening

Let’s deal with each of these points in turn.

Terry’s Feeding Tube Can Be Removed, Legally and Ethically

The Supreme Court decided, back in 1990, that it was legal for patients to express their wishes, in advance, that they did not wish to have their life prolonged by extraordinary means, and that it was also legal for hospitals and other care-givers to follow these expressed wishes. Further, courts have held that individuals’ wishes can be expressed through living wills or through their verbally-expressed wishes to those around them.

It’s also long been held that some adults can be guardians for other adults and minors, and that these guardians can act in the best interests of those whom they represent. Guardians have long been allowed to make medical care decisions for those they represent, and, more recently, have quite regularly been allowed to make the decision to continue or withhold extraordinary life-prolonging care.

So it’s legal to make this decision. But is it ethical? Well, one of the expert witnesses who testified in the original case that determined that Terry’s tube would be removed, yes. Father Gerald Murphy, a Catholic priest and expert on end-of-life care for the Catholic church, communicated the church’s position in his sworn testimony (warning: Word doc). The church draws a clear line between suicide and murder and simply allowing nature to take its course; terminating extraordinary measures, after a long period of time, is not unethical.

Medical Evidence Suggests Terry Has No Hope For Recovery

Terry’s brain has been destroyed by her heart attack and long incapacitation. Depending on what expert you listen to, she either has no cerebral cortex, or very little of her cerebral cortex remains. Her brain stem remains undamaged, and her behavior is typical of an individual showing only brain stem activity. Prognosis for this condition, after about six months, is extraordinarily poor.

But what about a miracle? As Father Murphy points out, God is omnipotent and omnitient; He doesn’t need us to feed Terry for Him to work a miracle.

Her Parents Have Been Heard — And So Has Terry

A frequently-made argument is “let’s take a little time to hear every side of the case”, or “let’s make sure Terry’s parents have the chance to give their input.” Well, it’s been seven years, isn’t that acting with due patience? And Terry’s parents were heard; the initial order to extubate was given by a court that listened to the testimony of Terry’s husband, her parents, her brother and sister, and many experts, and, with no vested interests, made a dispassionate decision.

Oh, and, as part of that process, the court did its best to hear Terry’s wishes. While her parents feel that Terry would have wanted to continue to live, the judge didn’t feel that this was a credible interpretation of Terry’s expressed wishes. The judge found that Terry had most likely expressed a wish to be kept alive through extraordinary measures when she was 11 or 12; more recently, individuals including her husband, her brother, and her sister all testified that Terry had expressed distaste for a life prolonged in this way. Unless one believes, against all medical evidence, that Terry has higher mental function, these are Terry’s wishes, and they’re being ignored.

A Dispassionate Decision Has Been Made

Let’s return to the court’s decision. The procedure followed was pretty simple, and standard in cases in which a guardian and other interested parties disagree as to the best course of medical treatment — the two parties appeared as adversaries in court. The court, with no vested interest in either side, made a decision as to which of the two approaches would be best. The decision was upheld by an appeals court and the Florida Supreme Court declined to review the case further.

During this time, two court-appointed guardians reviewed the actions of both Terry’s husband and her parents and found that both were acting selflessly, in what they percieved to be Terry’s best interests. These guardians had no reason to support either side, but they chose not to stop Michael Schiavo’s course of treatment.

Her Parents’ Recent Behavior Has Been Unethical

Now we get to the more recent developments. Terry’s parents have moved their case — if they can’t win in court, they’ll try to win in public opinion. This is a tactic long used, for good and for ill, and is in no way unethical. One example is the Freedom Riders, an effort to move the fight against segregation from Southern courts to the public consciousness. As with many actions, the normative value here is determined by the specific manifestations of the public fight. Unfortunately, here, we see unethical behavior:

• Terry’s parents have suggested — not alleged in court, but suggested in public — that Terry’s husband beat her, causing her injuries. Terry’s husband has never been charged with beating her. Terry’s heart attack was found, in court, to have been caused by the effects of bulimia; the two doctors who were sued, and from whom $2 million was recovered, never alleged any spousal abuse, although, clearly, it would have been in their interest to do so.
• Terry’s parents have suggested that her husband is just trying to get her money. But Michael has passed up offers of over $1 million to walk away from this case, he passed up the chance to divorce Terry and take half of the recovery for himself; and, in fact, some have alleged that the initial falling-out came because the Schindlers asked for a part of the settlement. Certainly, at this point, there’s no money left, so why would Michael fight over it?
• Terry’s parents have suggested that her husband has not looked out for Terry’s interests. But, court records show, Michael is Terry’s most frequent visitor, he has very aggressively pursued the best care for her throughout her hospitalization, and he’s even become a Respiratory Therapist.
• Then there’s the video. We’ve all seen the pictures of Terry laughing and responding to stimuli. The problem is, as the court has stated, this behavior is a trick of editing. Terry appears to respond to a particular stimulus once, but, in the course of the entire tape, never responds again. Some limited vocalization, movement, blinking, even normal sleeping and waking cycles are normal symptoms of Persistent Vegitative State. The entire tape shows the expected, random, behavior. It’s disturbing, certainly, but no sign of higher brain activity. Should the edited tape have been used as a tool by Terry’s parents? Not if it didn’t show the full range of her behavior. Using the edited portion creates the desired effect, but fails to communicate the truth.

The Florida Legislature’s Bills, and the Recent Act of Congress, Are Unprecedented and, Perhaps, Unconstitutional

Most disturbing are the developments of the last year and, especially, the last few days. First the Florida Legislature and, now, Congress, have attempted to change the outcome of this case. Clearly, the Legislative branch has the right to create or change law. What’s unprecidented is that in this case law is being created not because of changes in society or in values or in commerce or in other interactions, but to change the outcome of one single court case with which some members of the Legislature disagree.

Traditonally, the Legislature has made laws, the Courts have interpreted these laws in specific cases, and individuals have been able to rest confident that their circumstances and outcomes would be predictable, within these bounds. The Constitution separated powers this way both to provide predictability and to minimize the potential for abuse. Now the Legislative branch has, effectively, merged these powers.

We’ve all been traditionally protected not just by law but by Common Law, a set of cultural traditions built up over hundreds of years. It is exclusively the court’s job to apply and interpret Common Law. By including Common Law in our traditions, we ensure continuity and predictability. The Legislature is free to toss aside Common Law and, in fact, has done so here. So, what can we expect will be legal in the future? Well, that can change fast now. We can’t even expect our victories in court to hold up! Now that we know the Legislature will create specific laws to deal with the outcome of specific cases with which it doesn’t approve, how can we know what outcomes will be changed? There are no rules or precedent; any outcome can be changed, in ways inconsistent with other outcomes. The incentive for acting legally has been decreased, and the incentive for seeking influence has been increased.

For over 200 years, the United States has succeeded not least because of a system that maximizes freedom, liberty, and predictability. If you see a change in this system, you’re right. How the latest law will get past the Constitutional challenge is beyond me.

So What Now?

Hopefully, this will all soon be resolved. If the Federal Court refuses to hear the appeal, then everything can end. I know I’m making a written Living Will, and you should too.

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