For Terri Schiavo, it’s all over but the starving. However, the
repercussions of pulling Terri’s feeding tube are just beginning.
National Review Online’s Andy McCarthy has explained that the abuse of Terri Schiavo’s
rights would scandalize the nation were the same things done to
murderers or terrorists. Actually, it’s worse than that. Not only
do we treat our murderers with more care than we treat
incapacitated patients like Terri Schiavo — we dispose of our
property with more care than we are disposing of her life.
Imagine a different set of facts in the Schiavo case. Let’s say
a woman named Terri owns (independently of her husband) a very nice
sports car. Then one day she dies, suddenly, without a will.
If someone dies without a valid will, statutes called intestacy
laws determine who is entitled to inherit the dead person’s estate.
Intestacy laws can get complicated — but the law in Florida (as with most states) is that your
surviving spouse inherits all your property.
Anyway, in this hypothetical, Terri’s mother doesn’t like that.
In court she says that Terri told her once or twice, “Mom, if
anything happens to me, I want you to have that car.”
There is this very straightforward procedure to settling
questions of property distribution when no written will exists: If
there’s no written will to debate, then the intestacy statutes
control and that’s that — whatever Mom says Terri said is simply
irrelevant to the operation of the law. The mother’s statement is
inadmissible. No will? Terri’s husband gets the car.
If Terri doesn’t like the way the intestacy statute will
distribute her property, of course, all you need to do is draft a
will that clarifies your wishes. There’s either a will, or there
isn’t. And if there isn’t a valid will spelling out Terri’s true
wishes, no one can derail this statutory procedure by testifying
about what Terri said years ago.
Contrast that with the real facts of the Schiavo case. Witnesses
offered conflicting statements about Ms. Schiavo’s wishes, as she
expressed them in the 1980s. Those statements were construed by
Judge George Greer to be “clear and convincing evidence” that Terri
would wish to be starved to death were she ever in the situation
she is now in. If this were a property distribution under intestacy
laws, the answer would be clear. The witnesses’ statements would be
ignored, and the statutory presumptions would control.
In other words, the kind of testimony Michael Schiavo gave would
not be sufficient (or even admissible) to affect the disposition of
Terri’s property — but it is sufficient to end her life.
Not just intestacy laws offer more protection for property than
for Terri. As “mildly pro-right-to-die” blogger Ace of Spades noted, “You
need a written contract for any lease of land that lasts more than
one year; it seems very odd to me indeed that the taking of a human
life requires only one hearsay statement from one interested
party.”
These priorities are skewed. If a dead person’s property is
accidentally distributed against his wishes…too bad, we tried,
you should have written a will. But if an innocent, incapacitated
person’s life is ended against his wishes? A mistake like that
would be horrific.
This possibility of a judicially approved execution of an
innocent motivates many activists to seek the end of the death
penalty. Even a prisoner on death row cannot waive his opposition
to his own execution this easily. At the very least such a decision
must be informed, and formalized. Even then, civil rights groups
will often continue a condemned murderer’s appeal long after he has
withdrawn from the process. Call me a bible-thumper, but the
possibility of executing an innocent unwilling victim by court
order deserves similar safeguards.
There should exist a presumption that people want to live. That
ought to be the operative presumption across the country,
regardless of whether a widespread demographic preference develops
to the contrary. If you don’t like the presumption, you can draft a
“living will,” and rebut it. You should never have to “opt out” of
your own execution.
And you should never stand condemned by offhand remarks made
while watching a movie of the week. In his 2000 decision (available
in this useful timeline/archive of the Schiavo case), Judge Greer
considered statements from Terri’s mother and another unidentified
witness that Ms. Schiavo did not wish to die. He also considered
statements from Michael Schiavo, his brother, and sister-in-law
Joan. Michael and Joan discussed things Terri Schiavo had said
after watching television dramas about people on life support
(which Terri is not). Curiously, Terri’s mother and the other
witness offered testimony about what Terri said after watching
similar programs — she thought the person on life support should
remain alive. Do these conflicting post-TV accounts really settle
the question of Terri’s intent?
Terri apparently told her brother-in-law that she did not wish
to “be kept alive on a machine.” A feeding tube is not a machine,
except perhaps in the most basic sense of an inclined plane.
However, judicial activism is never deterred by ambiguity. Judge
Greer relied on testimony from an expert witness who had conducted
surveys about Americans’ general attitudes toward palliative care,
and concluded that Ms. Schiavo’s words
reflect underlying values of independence, quality of
life, not to be a burden and so forth. “Hooked to a machine” means
they do not want life artificially extended when there is not hope
of improvement.
This is absurd. Looking beyond the conflicts of interest
inherent in Michael Schiavo’s testimony, the various statements
attributed to Terri Schiavo are conflicting and contradictory. The
use of an expert witness to interpret, and to testify about what
most Americans usually mean acknowledges that Ms.
Schiavo’s own words on the subject, if they were ever spoken, were
neither clear nor convincing enough to stand on their own.
It is exactly this sort of nightmarish, complex he-said,
she-said situation that the strict presumptions about intestacy are
designed to avoid. Not only due respect for life but simple utility
militate for a similar standard on Living Wills. If you want to be
removed from life support, or if you do not wish to be fed through
a tube, then make a formal, written declaration. The law requires
as much for the disposition of property. We should require it for
the disposition of life as well.
