Rarely does the U.S. Congress intervene in personal
controversies. Yet members held a very unusual weekend vote to
save, at least temporarily, the life of Terri Schiavo, who
otherwise would slowly starve to death at the Florida hospice in
which she is confined.
The case is both tragic and complicated.
Terri collapsed for unknown reasons in 1990. Although
cognitively disabled, she is not in a coma.
Her husband, Michael Schiavo, won a $1.3 million medical
malpractice judgment, but he used none of the funds to provide her
with rehabilitative care. Over the years he had two children with
his live-in girlfriend.
Seven years ago he petitioned the court to remove Terri’s
feeding tube. Twice it did so, only to be quickly overturned both
times. Most recently, in October 2003, the trial court ruled for
Michael but Florida’s legislature authorized Gov. Jeb Bush to order
the tube reinserted. After the usual lengthy appeals, the Florida
courts invalidated that law, finally leaving Michael free to order
her feeding tube removed on March 18.
Now both the House and Senate have passed, and President George
W. Bush has signed, legislation allowing the federal courts to
review her case. The latter still might let her die, but the case
would essentially begin anew, only at the national level.
Nothing about the case is simple.
*The right to die. Although euthanasia
proponents and opponents have lined up on the predictable sides,
virtually no one disputes Terri’s right to choose whether to live
or die. The problem is, she left no “living will” or other
instructions. So we really don’t know what she would decide.
Terri said she wanted “no tubes,” contends Michael, backed by
his brother and sister-in-law. However, no other family member
heard her talk in this way.
When seeking money for rehabilitative care, Michael did not
mention her supposed desire to die. A former girlfriend said that
he denied ever talking with Terri about such a situation.
Even if Terri did say “no tubes,” did she envision her current
circumstance? How many people would want to die based on off-hand
comment made years or decades before?
*Permanent vegetative state. Although Terri is
disabled, doctors disagree about the degree of her impairment.
Florida law defines a vegetative state as “the absence of voluntary
action or cognitive behavior” and “an inability to communicate or
interact purposefully with the environment.”
Terri seems to respond to people and events. Although some
experts have dismissed the significance of her actions, others
disagree. For instance, neuropsychologist Dr. Alexander Gimon
argued that her responses “are completely inconsistent with a
diagnosis of vegetative state.”
Contended neurologist Dr. William Hammesfahr, Terri “is alert
and responsive to her environment. She responds to specific people
best.” Her one-time court-appointed guardian ad litem, Jay
Wolfson, concluded that Terri had a “distinct presence” and
responded to family visitors.
Finally, Dr. William Hammesfahr, who has aided people with
chronic brain injuries, said: “There are many approaches that would
help Terri Schiavo. I know, because I had the opportunity to
personally examine her, her medical records, and her X-rays.”
*Looking after Terri’s or Michael’s interests?
The circumstances of Terri’s collapse would be hard on any spouse.
But Michael’s behavior led commentator Deroy Murdock to observe
with generous understatement: “Michael Schiavo has not been a model
husband.”
He said-she said controversies are notoriously difficult to
resolve. But Terri’s family questions Michael’s motives. He has
essentially remarried and had children with his new “wife.” He
failed to use Terri’s malpractice judgment to fund rehabilitative
care for her, despite opinions by some doctors that it could be
effective. Her family also cites concerns about Terri’s collapse
and Michael’s allegedly violent nature.
Indeed, in a deposition two years ago nurse Carla Iyer, with
nothing apparently at stake in the case, reported that Michael
asked: “Can’t you do anything to accelerate her death?” Iyer said
he went on to query: “When is that bitch going to die?”
Michael’s treatment of his in-laws suggests that he has
something to hide. He has sought to prevent them from visiting and
restricted their access to information about her treatment.
*Federal-state conflicts. Traditionally, the
Republican Party has advocated federalism, giving states maximum
autonomy to decide issues within their borders. Toward that end,
during the Clinton years the Republican Congress restricted federal
death penalty appeals from state courts.
Yet the emergency legislation grants the federal district court
in central Florida jurisdiction over any case involving Terri
“relating to the withholding or withdrawal of food, fluids, or
medical treatment necessary to sustain her life.” The provision is
limited — by its terms it neither creates new rights nor addresses
assisted suicide. But it allows national jurists to conduct a
de novo review of both the facts and law and to trump the
Florida courts.
*Republican grandstanding. Undoubtedly, many
Republican politicians believe that an injustice has been done to
Terri and her family. Yet they are not above using the issue for
political advantage.
A memo distributed to Republican Senators — the GOP leadership
denies authorship — characterized the case as “a great political
issue,” especially useful in winning support from conservative
Christians. It “is a tough issue for Democrats” exulted the memo
writer. The bill was expected to pose particular problems for
Florida’s Sen. Bill Nelson.
*What will federal judges do? Lawsuits have
ranged up and down Florida courts for years. The federal fight
could be equally bitter.
The first fight is over reinserting the feeding tube until the
case is decided. Terri’s parents are seeking a hearing on their
claim that removing the feeding tube violates her rights. Michael
will push to void the law as unconstitutional, with possible
grounds ranging from equal protection to federalism to separation
of powers to Terri’s right to die.
Naturally, the losing party inevitably will appeal. As has
happened in Florida.
SO THE SCHIAVO CASE ISN’T likely to be decided any time soon.
There’s probably been a serious miscarriage of justice at the state
level. But that bad decision has resulted from the normal operation
of the rule of law.
Thus, as a matter of principle — principle normally embraced by
Republican legislators and presidents — the national government
should stay out of the case. Setting a precedent by intervening in
such a personal legal dispute will encourage Congress to overturn
other state judgments, threatening good as well as bad decisions.
The result could be far more harm than good.
Perhaps the reform most needed is to fix the Florida courts.
They seem to have badly mishandled the Schiavo case. Their
activist, even dishonest, decisions run back to the 2000 election
and the earlier tobacco litigation.
But there is a simple way to end legal wrangling in the case.
Turn Terri’s care over to her parents. Give them the remains of the
malpractice proceeds to treat Terri as seems best.
This action would allow Michael to rebut criticism, perhaps
unfair, of his motives and behavior. He could get on with his life,
presumably with a divorce to free him to marry again.
There’s nothing simple about the case of Terri Schiavo.
Unfortunately, the interruption of her young, vibrant life will
remain a tragedy no matter what happens next.
