Posted by Sappho on March 22nd, 2005 filed in News and Commentary
So, in the past few days, we’ve seen the subpoena for Terri Schiavo to testify to a Congressional committee (no surprise that that legal maneuver failed, since she can pretty much testify just as effectively without her feeding tube as she could have with it, but I’ll give credit for creativity). We’ve seen the special law with Terri Schiavo’s name written into it (I didn’t know Congress could do that, but apparently the constitutional status of the law is not obvious). And, today, we’ve seen a new judge, Judge Whittemore, deny the Schindler’s request for a temporary injunction, apparently by rejecting the merits of the Schindlers’ case altogether. Florida legal blogger Matt Conigliaro, of Abstract Appeal, writes:
Expect a lightning fast appeal to the Eleventh Circuit. And a very quick response.
Meanwhile, Schindler supporters continue to pursue a backup plan in the Florida legislature. But the outpouring of organizing on the web is no longer one-sided. While BlogsforTerri continues to actively organize pro-Schindler bloggers, with timely information and calls for action, the intervention of Congress has galvanized bloggers on the other side as well, and we now have Majikthise organizing a Schiavo blogswarm “to put pressure on Congress to butt out of the Schiavo case.”
So it’s time to pull together my thoughts and revisit this case. Here they are (with little subject tags to slightly organize them).
Rule of law
Many months ago, back when I was first blogging the Schiavo case, in the fall of 2003, one of my commenters got quite upset with me for refusing to take a stand on the specifics of the case itself, on grounds that I didn’t have the facts. How could I not agree that the court that actually heard the case had the facts right, and that the various bloggers and commenters who were talking about it were off base? Who would better know what was actually true than the court?
Now, as it happens, as I’ve reviewed timelines and facts about the case, it does now seem to me that at least some of the information circulating among bloggers is almost certainly wrong. In particular:
- It’s often been said that as soon as Michael Schiavo got the settlement money, he turned around and started trying to end his wife’s life. Maybe some of the people saying this are privy to some information I don’t have, but it sure looks to me, from the timeline on this Terri Schiavo information page, as if Michael Schiavo won his medical malpractice suit in January 1993, and waited until May 1998 to file a petition with the court about removing Terri Schiavo’s feeding tube.
- It’s often said that the only person testifying that Terri Schiavo would have wanted the tube removed was Michael Schiavo, while her parents and friends were testifying on the other side. That appears to be false; the court heard multiple witnesses on both sides.
But I don’t know, and don’t choose to know, everything those multiple witnesses said. I don’t know how the court weighed various people’s testimony, and possibly conflicts of interest, to come to the conclusion that there was “clear and convincing evidence” that Terri Schiavo would have wanted her feeding tube removed under these circumstances.
And I sure as hell don’t know what Terri Schiavo’s real desires are. I don’t know that the court called this one right.
Nor do I believe that’s a level of respect we owe to this court, or to any court. Face it, we all know of cases where we think a court, or a jury, got a case dead wrong. Think of all the controversial verdicts and rulings you’ve ever heard of: the trial for the beating of Rodney King, the trial of OJ, that gang rape trial of Haidl that recently took place here in Orange County, Supreme Court decisions from Roe vs. Wade to the 2000 election, state court decisions on similarly controversial issues. All of us can think of at least one controversial court decision that we think was dead right, but we can also all think of at least one decision, by a judge or jury who very likely had access to more facts than we do, that we seriously doubt.
So I don’t think it makes any sense to tell people who have informed themselves about a case, whether well or poorly (and some people, notably T.Z.Marzen in the comments section of Amy Welborn’s blog, give me the impression of having informed themselves rather a lot, on this case and the matter of legal issues regarding life support in general) that they’re bound to be wrong in disagreeing with a court’s ruling, simply because the court knows more than they do.
What we do owe to the courts is more a general acceptance of the rule of law, that if we don’t like how courts rule, we’ll pursue the proper legal avenues of appeal. Something like that famous line of the Thomas More character in “A Man For All Seasons”:
Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
So, when a documentary uncovers new evidence that a miscarriage of justice has placed an innocent man on death row (as happened with the movie The Thin Blue Line), you pursue the correct legal avenue and take it back to court and get the guy off.
Terri Schiavo’s medical status
Sorry, she doesn’t have much of a cortex left; her brain is largely liquid. She’s not going to come back to more or less normal, start talking, and tell us all about what she was thinking these past fifteen years. Yes, I know she hasn’t had the most sophisticated brain scans possible, but you don’t need sophisticated brain scans to see that large chunks of her cortex just aren’t there.
BlogsforTerri is full of well-intentioned hopeful posts about how this person or that person was worse off than Terri and now is much better. tim posts a letter from a reader whose sister was four days into a coma, on a feeding tube and a respirator, and her parents were told she was PVS, but they refused to give up, and now, though she’s still physically challenged and in a wheelchair,
she votes in elections and loves to debate the issues. My sister was given a second chance at life, and Terri deserves that same chance!
Please note that Kim was in a worse condition than Terri. Kim was on a ventilator while Terri is not.
Sorry, no, Kim was not in a worse condition than Terri. Being unconscious, or on a feeding tube, or on a ventilator, does not mean you’ll never be conscious and communicative again; no one thinks this. My own niece was born way premature (just past 24 weeks gestation, at one pound six ounces), and was on a feeding tube and a ventilator for a good deal longer than four days, and she walks and talks and climbs trees now. If someone tells you your daughter is PVS after four days in a coma, by all means, get another opinion! But Terri Schiavo is not going to be voting in any elections or debating any issues, ever, not just because she’s been unresponsive for fifteen years, but because she doesn’t have enough cortex left. Rivka of Respectful to Otters, a doctor, explains the medical issues (complete with pictures of Terri Schiavo’s cortex).
There’s been a lot of talk about Terri Schiavo’s loss of dignity in her current situation. I have trouble with this talk. In the first case, you can’t have it both ways. She can’t both be an empty shell of a person who can’t possible suffer if food and hydration is removed, and also be suffering grave current harm by being forced to live. Pharyngula puts it aptly, if a little coldly:
However, I disagree that she must be allowed to die. She doesn’t care anymore, and whether there was a living will or request to be allowed to die simply doesn’t matter. Just as there is nobody there to preserve, there is nobody there to protect from the right-wing ghouls who want to preserve her mind-free still-warm corpse.
I don’t quite agree that her requests don’t matter; I think it’s important to honor, when people are ill, whatever wishes they may have expressed when they were healthy. But I do agree that it’s unlikely Schiavo is currently eagerly hoping to die. And whatever her earlier wishes may have been, and however we may need to honor them, the reason for honoring them can’t possibly be that she’s suffering loss of dignity now.
But there’s a larger reason why I’m uneasy about arguments about Schiavo’s “dignity.” It’s that I’m uncomfortable with our whole cultural attitude that helpless is undignified, that people suffer a loss of dignity by requiring care by others and life support – this whole cluster of attitudes that leads some to cheer suicide by the elderly and ill, while we would rush to talk anyone young and healthy out of it. I do believe that people have the right to place limits on what medical care they’re willing to receive; I don’t think the reason for it should be that certain life circumstances are too lacking in dignity to continue. I haven’t time to write out my reasoning in detail, so I’ll just reference Rivka, who speaks much more eloquently than I can, on why we should have the right to refuse forms of medical treatment that we don’t want, and on why she is strongly opposed to euthanasia.
Spoon feeding Terri Schiavo
Oh, heck, what harm could it possibly do to let her parents come in and try to spoonfeed her? She’ll aspirate some food into her lungs and die of pneumonia? Pneumonia’s as gentle a death as is available to her now. Seriously, I think any family member who wants to try should have the opportunity to try to spoonfeed someone who’s been removed from a feeding tube. Feeding tubes may be medical treatment, but food and water surely isn’t.
What the law should look like
Hilzoy gives a summary of the issues at stake: should competent adults have the right to decline medical treatment, should artificial feeding and hydration count as medical treatment here, and what standard of evidence should apply when someone didn’t leave a living will. As far as I can tell, no one is arguing that competent adults shouldn’t have the right to decline medical treatment – and it would, after all, be absolutely horrible to lose that right. Some people do seem to be arguing that people should not have the right to decline artificial feeding and hydration, ever, but I have trouble with that one, since feeding tubes can be pretty intrusive, and, though I know that some people live quite worthwhile disabled lives while always requiring a feeding tube, surely there are at least some situations where the costs would outweigh the benefits? At least, people who are dying anyway and would be happier getting their last food and water in the usual way should have that option, even if they die a shade faster (but more comfortably).
On the matter of how courts determine the prior wishes of people who are incapacitated – this is a state matter, right? So, just in the US, we have 50 different states, with possibly different laws and precedents – for all I know, Florida law is totally whacked. Heck, for all I know, my own state, California, could have a totally whacked law on this matter. So I’m open to argument in either direction on whether our current laws make sense or not. Deciding how the law should be written, though, involves a lot of other cases besides this one, because, contrary to what some people are saying, Terri Schiavo’s case is not all that unusual. A hospice worker blogger writes
What I’d like to say is a response to a quote from House Majority Leader, Tom Delay that was found in this article in the Washington Times. I’m sure it was said by many members of congress over the weekend, but Mr. Delay is the one who was quoted.
. . . itâ€™s a highly unusual case. . .
I know that out of all the words that have been spilled on this subject, these are odd ones to pick, but to me they are the essence of what is wrong about what congress did this weekend. That statement is totally false. This is a crappy case. This is a sorry situation for anyone to find themselves in. This case makes us all want to puke. Any of those statements would have been just fine, and I think they are all true. This is not a highly unusual case. Sure, Iâ€™ve never seen these exact details before, but Iâ€™ve seen a bunch like it.
I had the 40 year old police officer with End Stage ALS whose wife moved in with her boyfriend while the patientâ€™s sister and teenage sons took care of him at the house. The wife would get mad about something every once in a while and threaten to take him off hospice . . . and we all knew she could. There was the son I spoke of in this post, who admitted to my face that his father had told him time and again that he wanted to die at home. The son refused to allow the sister who had taken care of her father for years to grant their father’s wish, because he and his girlfriend had moved into the fatherâ€™s house (rent free) while dad was in the nursing home. I could go on, but those are the best ones that have happened this year.
Not winding up where Terri Schiavo is now
I’m wondering, actually, whether any of us really has an absolute guarantee that we won’t wind up subject to a vast court battle. OK, you can write a living will – but most living wills are pretty darn vague – is “be sure to unhook me if I’m in a persistent vegetative state or about to die real soon” really what most of us want to be the entirety of our medical wishes for ourselves if we’re incapacitated? You can write a letter saying in much more detail what your wishes are, and pick someone to give durable power of attorney to – and durable power of attorney along with discussion of your values looks more useful to me than a mere living will – but still, what’s to say that someone can’t challenge my durable power of attorney? After all, it’s given to someone – my husband – who has been diagnosed with bipolar disorder (yes, I feel OK about that – he’s conscientious about taking medications, and has an idea when he’s heading into a moodswing). I do have a sister as backup person for power of attorney (and I expect probably everyone should have a backup, especially if power of attorney is given to your spouse – you could be in the same accident). I’m not sure we have an absolute guarantee against being the subject of a court battle, but we do have ways of making our wishes known.