Terri Schiavo
by hilzoy
As I type these words, the US Congress is preparing to meet in extraordinary session to decide whether to pass a bill granting Terri Schiavo's parents the right to take her case to federal court. This is an amazing spectacle on any number of counts. But one of the most striking to me, as a bioethicist, is that so many people are talking as though Terri Schiavo is the victim of some alarming new indignity. Thus, ABC News (video clip here; 'Questioning Intentions') showed Rep. Dave Weldon saying, on the floor of the Congress, "To order the withdrawal of food and water from somebody -- it's never been done before to my knowledge." There are only two ways to take this claim: either Rep. Weldon is lying or he has not bothered to inform himself even minimally about what he's talking about. In fact, the only thing about Terri Schiavo's case that's at all unusual is the amount of attention it has received.
The basic facts of the case are well known (there's a very good account here.) In 1990, Terri Schiavo suffered cardiac arrest, probably as a result of bulimia. (If any of you have been wondering why a woman in her twenties had cardiac arrest, that seems to be the answer. The underreporting of this aspect of the case is a real missed opportunity to educate people about the consequences of serious eating disorders.) As a result of the cardiac arrest, her brain was deprived of oxygen, which caused severe brain damage.
Eight years later, after various attempts at therapy and a successful malpractice suit (based on the doctors' failure to diagnose Terri's eating disorder), Michael Schiavo petitioned the court to determine whether her feeding tube should be removed. Many press reports talk as though he just decided that it should be removed; in fact, he left that decision to the court. He and others testified that Terri Schiavo had said that she would not want to be kept alive in a condition like the one she was in; her family of origin testified that she had said that she would. The judge found (pdf) that there was 'clear and convincing evidence' that Terri Schiavo would not have wanted to receive life-prolonging care in her current condition, and ordered that the feeding tube could be removed. (If you are wondering how the judge could have found 'clear and convincing evidence' given conflicting testimony, I urge you to read the pdf, which explains why the judge did not find her parents' testimony credible. In one case, for instance, they testified that she had made a remark supporting their position when she was an adult, but it turned out that she had said it when she was 11 or 12.) This was in 1998; in 2001, after this decision had been appealed as far as it could go and upheld, her feeding tube was removed for the first time.
However, the tube was reinserted after her parents filed another appeal based on the claim that they had new evidence and that there were new treatments that might help her regain consciousness. These appeals were heard and denied; again, the case was appealed as far as it could go, and upheld. Terri Schiavo's parents then challenged the constitutionality of the relevant laws, but this challenge was dismissed by a federal court. At this point, in October 2003, her feeding tube was removed for the second time. The Florida legislature then passed a law allowing Gov. Bush to issue a stay and have the feeding tube reinserted. After yet another series of appeals, this law was found to be unconstitutional by the Florida Supreme Court; this decision was appealed to the US Supreme Court, which denied review. The parents then filed various new motions all of which were denied; and on Friday Terri Schiavo's feeding tube was removed.
As I read this history, several things stand out. The first is that it is hard for me to see how anyone could think that Terri Schiavo's feeding tube was being removed without due consideration, since more or less every relevant aspect of it has been litigated and appealed as far as possible. Nor, as far as I can tell, is there any question about the competence of the lawyers involved: everyone seems to agree that both sides have been well represented.
The second is that there seems to be very little question about whether Terri Schiavo might ultimately recover. (Rivka at Respectful of Otters, who is a doctor, has a good post about the medical opinions offered by Terri Schiavo's parents.) As one of the court decisions in this case said (pdf; p. 7):
"Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex."
The cerebral cortex is responsible for cognition and the integration of sensation. Terri Schiavo's cerebral cortex is not only dead; it has liquified. If her cerebral cortex were still there but for some reason not working, then there might be hope that she could recover. But in her case, it's gone. In order for her to recover, it would have to be literally recreated. Here, via Alas, a blog, is a scan of Terri Schiavo's brain and a healthy brain:
My understanding is that the dark bits are spinal fluid; and thus that the fact that the scan of Terri Schiavo's brain shows huge dark areas, both in the center and elsewhere, indicates that an awful lot of her brain has been replaced by spinal fluid. I am not a doctor, of course. But Rivka, who is, writes: "The amount of brain tissue missing is truly shocking." And PZ Meyers adds: "I am not a medical doctor, but I do have that Ph.D. in neuroscience (I am eminently qualified to analyze the brains of fish and insects), and that is one ghastly mess. That's not much of a brain, it's a balloon bobbing about in there." (In using these quotes, I mean no disrespect to Ms. Schiavo, for whom I have nothing but sympathy.)
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So much for the basic facts. Why is this happening, and what are the ethical issues involved? To understand this, you need to understand three basic facts about current law.
First, in this country competent adults have the right to decline medical treatment. This is a very good thing, since many of the things doctors do to their patients would constitute assault if done against those patients' wills. It is this right that allows cancer patients to decide not to undergo that last excruciating round of chemo that would give them only a slight chance of survival, Jehovah's Witnesses to refuse the blood transfusions that they believe it would be sinful to receive, and people with painful terminal illnesses to refuse treatment for other diseases, like pneumonia, that offer them the chance of an easier death. This right is extremely important: without it, we could be subjected to serious assaults on our body without our consent, so long as some physician said that those assaults were medically necessary.
Second, courts have held that for these purposes, nutrition and hydration count as life-prolonging treatments, and thus that competent adults have the right to refuse them as well. This is also important: having a feeding tube inserted is a serious violation of a person's bodily integrity, and people have the right to refuse it. It's also a point that is often neglected in the coverage of Terri Schiavo's case. What is happening is not that a court has ordered that she be killed. If courts could order that, there would be no reason to wait for her to die; the court could simply order a lethal injection of some sort. The court has found that she would not have wanted this sort of medical treatment, and thus that it cannot be forced on her. This is completely different.
In the comments on a previous thread, in the course of a discussion about the difference between withholding treatment and killing, felixrayman wrote: "If she isn't fed, she'll be dead in a week or two. There is no substantial difference here." There is no substantial difference in the outcome of the two, in this case. Likewise, when a terminal cancer patient declines chemo, and a court upholds her right to do so, the outcome is the same as if someone shot her, since in both cases she dies. But there is a huge and important difference between what is done to produce that outcome. In the first case, the reason the patient dies is that she has decided to refuse treatment. If we deny her that right in cases in which she will die without treatment, we are denying her the right to determine what happens to her body. By contrast, if I shoot her, I have not just accepted her autonomy; I have taken matters into my own hands and killed her. As I said in another context, consent makes all the difference (and that post contains several other examples of cases in which "there is no substantial difference" in outcomes, but a very substantial difference morally.)
Of course, the obvious reply is that in the case at hand, Terri Schiavo did not ask that her feeding tube be removed. This brings me to my third point: In cases in which a patient is not competent to consent to or refuse treatment, there is a well-established way to proceed. First, you ask whether the patient has prepared a living will or an advanced directive, or has given a durable power of attorney to some other person, authorizing him or her to make decisions if the patient becomes incompetent. In this case, as often happens, there were no such documents. Second, you look around for other evidence about what the person would have wanted. That was done in this case, and the courts found "clear and convincing" evidence that Terri Schiavo would not have wanted to be kept alive in her current state. If there is no such evidence, a guardian gets to decide, based on the patient's best interests.
As I noted earlier, in this case Michael Schiavo is his wife's guardian, and might have decided what she would have wanted. However, he chose instead to ask the court to consider the evidence about what she would have wanted, and to make its own evaluation. It found that she would not have wanted to be kept alive. That is: this is not a case in which anyone is proceeding in the absence of evidence about what she would have wanted, nor is it a case in which Michael Schiavo is acting only on his sense of what his wife would have wanted, without allowing a hearing for anyone else's view.
Under current law, when a person is incompetent to consent to or refuse treatment, evidence of that person's views and wishes is used to determine whether or not s/he would have consented to treatment. In Terri Schiavo's case, the courts have determined that she would not have consented. In accordance with what they have found to be her wishes, they are seeking to discontinue the treatment to which she would not have consented. That is: legally, this is a matter of letting her views about her life and her body govern the treatment she is subjected to, not a matter of anyone else's deciding whether she will live or die. What's at issue in this case is not "life"; it's patient autonomy.
It seems to me that in order to say that Terri Schiavo's feeding tube should not be removed, you have either to challenge the basic facts of the case as found by the courts, or to say that one of the three points I have just made is wrong. I don't imagine that many people will say that competent adults should not have the right to decline medical treatment. Some people may be tempted by the idea of denying that feeding and hydration are among the things competent adults should be able to decline, but if you think about the huge intrusion on people's bodily integrity and autonomy that giving the government the right to force you to have a feeding tube implanted against your will would represent, I think this view will seem less attractive.
The most plausible place to disagree, I think, is on the third point: taking evidence of an incompetent person's views and wishes to determine whether that person would have consented to treatment. Here I think it's important to bear several things in mind. First, requiring 100% certainty about someone's wishes would make it impossible to decide what to do for any incompetent patient. Suppose, for instance, that that patient left a living will: living wills are almost never detailed enough to cover all possible contingencies, and they often need to be interpreted to yield a conclusion about actual treatment decisions. (A case I sometimes use in class involves a nursing home patient who has made it clear that she does not want to be resuscitated artificially, who has a really bad reaction to a new medication and goes into shock, and who can almost certainly be immediately and completely resuscitated with an epi stick. Depending on the details, it can be pretty clear that this was not the case the patient had in mind when she asked not to be resuscitated; that she was thinking of herself having gone into a serious decline and being kept alive with tubes and then suffering cardiac arrest, not of a quick and reversible allergic reaction.)
Suppose the living will turns out to cover exactly the case at hand, so that no interpretation is needed. One might still wonder: might the patient have changed her mind after writing the living will, but never gotten around to updating it? If she didn't mention any such change of heart to anyone, that's hardly proof that none occurred. But even if, by some huge coincidence, she was discussing an exactly similar case at the very moment when she collapsed, that's not proof either. It often happens that people's views about what they would want in a given case are wrong. People think they'll be happy if they get promoted, and then find themselves just as miserable as before; they think they could never learn to live without the use of their legs, but then go on to live perfectly happy wheelchair-bound lives; they think that some medical problem would be easy to deal with, but when it actually occurs find that it completely undoes them. So knowledge of Terri Schiavo's views on this exact case at the very moment when she went into cardiac arrest would not guarantee any knowledge of what she'd want if, per impossibile, she were able to have desires now. But surely it's one's views at the time, not one's views in the past, that should dictate one's treatment.
This means that if we require 100% certainty about people's wishes in order to refrain from treating them, we will never refrain from treating any incompetent patient. (Maybe we won't refrain from treating competent patients either: after all, they could be lying.) And this in turn means that a lot of people's wishes about what medical treatments they would like to receive, and what they do and do not want done to their body, will be violated. There is, it seems to me, no getting around this point.
This might not seem significant if one thought that there was no harm that could even be compared to the harm of losing your life, where 'losing your life' does not mean 'being killed', but simply dying. I do not think this is true: there are things I would rather die than undergo, and one of them is having my fate made the object of a political circus, as Terri Schiavo's is. More importantly, though, this is not the way our legal system is currently set up. We do not act to rescue people's lives whatever the circumstances. We do not force cancer patients to undergo that one last desperate round of chemo on the grounds that it might save their lives, and that this outweighs the violation of their autonomy that forcing chemotherapy on them against their wills would represent. We place autonomy first, allowing patients to decide for themselves which treatments to undergo, even when their decisions shorten their lives. I think this is as it should be. But if one accepts this, then it's hard to see how we can also say that we should never accept evidence that an incompetent patient would choose to refuse treatment on the grounds that we might be wrong. To take that view is to protect life at the expense of patients' autonomy, which we rightly do not do.
Suppose we relax our standard somewhat and say, as felix did: we will respect living wills, but not other forms of evidence. In this case, it seems to me, one would have to explain what is so special about living wills. If, as soon as a person formed a view about being treated in a given condition, a living will automatically wrote itself, that would be one thing. But obviously this doesn't happen. Lots of people have very strong views about treatment, views that they have expressed repeatedly and in detail, but have not written a living will. It is not the least clear to me why we should not accept other people's reports about what a patient has said about relevant cases, especially since we accept witness testimony in all other legal proceedings, including those on the basis of which we sentence people to an involuntary death.
It is of course true that the credibility of a witness's statement should be carefully considered. Witnesses can lie. (And living wills can be forged.) But I don't see why, after careful examination of one or (preferably) several witnesses' statements, one could not conclude that they constituted adequate evidence of a patient's wishes. The alternative is, I think, accepting a standard of adequacy so high that almost no incompetent patient could be denied treatment. And as I said earlier, this would involve a massive denial of patient autonomy.
In Terri Schiavo's case, the statements of various witnesses were heard, considered, and evaluated for credibility. On the basis of these statements, the court found that she would not have wanted to be kept on a feeding tube. That decision was appealed as far as it could go, and upheld each time. To my mind, relying on witness statements, critically examined, as evidence of a patient's wishes is perfectly appropriate, especially since most people do not, in fact, write living wills, whether or not they have strong views on the sort of treatment they would choose to receive.
On reflection, I'm going to save what I have to say about the Congress's actions for a later post. This one is too long already. But the takehome message is: first, it's about autonomy. Second, the result in this case follows from basic facts about the way we adjudicate these cases. There is nothing novel about the case itself. Third, if you think about what would be involved in changing these basic principles, it doesn't seem very attractive.
That, I take it, is part of the reason why Congress will pass a bill narrowly targeted at this case. To say that we will not allow feeding and hydration to be withdrawn regardless of a patient's wishes, or that we will not accept testimony about incompetent patients' wishes to count as evidence, would have huge and disastrous effects for a lot of patients and their loved ones. It would also be very unpopular. So Congress is trying to avoid acting in a way that would affect any other case, however similar. This is, in my view, cynical and contemptible.
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Update: if you are new to this site, please read this before making assumptions about what sort of blog this is.
Also, having followed a few of the referrals to this post, I think I should point out that I am one of those mysterious female bloggers you hear so much about these days.
Rep. Dave Weldon saying, on the floor of the Congress, "To order the withdrawal of food and water from somebody -- it's never been done before to my knowledge."
He really said that? Unless this is horribly out of context, he is severely out of touch with reality.
Posted by: heet | March 20, 2005 at 02:53 PM
Yep, he did. (I had to take out a 14 day free trial membership in something in order to get access to the video clip at the link I provided to see it, though. Along with James Dobson saying that this is how the Nazis started. Yep: Adolf Hitler, famous advocate for patient autonomy.)
Posted by: hilzoy | March 20, 2005 at 03:01 PM
Hasn't the important question been, at least since 2003, trying to understand why the Sciavo case has become so important to religious conservatives? They can't all buy the Schindlers' pathetic diagnosis. Is there something about the parents that appeals? Something about Michael Schiavo that repels? Or is there an occult attraction, something that only conservatives can see?
Posted by: R J Keefe | March 20, 2005 at 03:33 PM
This is excellent. There are only three things that I would add, not about the merits of any of this but in trying to figure out why this is happening.
1. I think that a lot of what is going on is an intuitve response to the idea of disconnecting a feeding tube. People have an intuitive emotional response to the idea of "starving someone to death" and denying them water, that leads them to overestimate the amount of suffering this causes a patient compared to other means of dying, and to overlook the difference between starving someone and not using a machine to feed them. I'm not sure why it's intuitive to us that there's a difference between disconnecting a respirator and suffocating someone to death, but the same is not true of a feeding tube. Maybe because a respirator is a larger machine that beeps more and has more lights on it; maybe because it is much more routine for a non-terminally ill patient to need to receive nutrition and liquid through a tube or an IV than it is for a non-terminally ill patient to need a respirator; maybe because a respirator must actually mechanically force a patient's non functioning organs into action whereas a feeding tube does not.
I don't think that any of these things are meaningful distinctions when we're talking about a non-consenting patient with no hope of any meaningful recovery.
2. I think part of the explanation of the fervor of the religious right, and of many people's failure to deal with the factual information about Terry Schiavo's medical condition, is that her condition is really horrifying to many people. It is especially horrifying from a religious perspective.
The parts of Terry Schiavo's brain that have been replaced by spinal fluid are the parts that science tell us are responsible for a person's memory, thought, consciousness, emotion, personality, sense of right wrong--all of the things that make us a person, and make us different from any other person.
The single word that describes this concept, in the English language, is the word "soul."
The idea that a living and apparently awake human body could exist for decades without a soul is really horrifying, and a very common response to horror is to deny its existence.
The idea that the soul is located in a part of the body that we can locate in a CAT scan and determine has been destroyed is a really fundamental challenge to religious teaching--a much, much, much more fundamental challenge in my view than the idea of a Big Bang or of evolution through natural selection, and we see how strongly those ideas have been resisted. If we know that the soul is located or contained in a specific part of the body, it is much harder to believe that it is really different from the body at all, or that it somehow escapes the body and rejoins God after death.
It also challenges conservative Christian religious teachings about abortion and birth control: if an adult human being's soul is located in the cerebral cortex, then preventing the implantation of an embryo without any nervous tissue does not kill a human being with a soul, and aborting a fetus before it has brain waves does not kill a human being with a soul.
When a situation challenges our most fundamental beliefs, we are very reluctant to acknowledge that it exists.
I should also note that like all scientific findings, the idea that the soul is located in the cerebral cortex could be misused to justify horrible abuses against people whose cerebral cortex is not functioning as it does in a healthy adult, but does still exist and is still functioning at some level. But if misusing of factual or scientific information can be used to harm people, so can ignoring factual or scientific information.
3. As far as why Congress is doing what it's doing--this is the only part of the post I actually disagree with:
"That, I take it, is part of the reason why Congress will pass a bill narrowly targeted at this case. To say that we will not allow feeding and hydration to be withdrawn regardless of a patient's wishes, or that we will not accept testimony about those wishes in the case of incompetent patients to count as evidence, would have huge and disastrous effects for a lot of patients and their loved ones. It would also be very unpopular. So Congress is trying to avoid acting in a way that would affect any other case, however similar. This is, in my view, cynical and contemptible."
This is what I thought at first too. After reading more about it, here is what I think is actually going on: the House GOP leaders want to pass a bill that is not tailored only to this case, that would have huge and disastrous effects for a lot of patients and their loved ones.
The emocrats think that given the circumstances of Ms. Schiavo's case, this bill has a good chance of passing, although they think it would never pass if Congress carefully considered this issue. Since they do not think they can stop the Republicans from doing this, and/or since the attempt to do so would be politically costly, they are trying to confine the harm as narrowly as possible.
Obviously this description is an oversimplification: it describes some congresspeople better than others, and doesn't describe any of them perfectly. But that's what I think is happening.
Posted by: Katherine | March 20, 2005 at 03:51 PM
First rate effort. Thanks so much, Hilzoy.
Posted by: jerseycityjoan | March 20, 2005 at 04:01 PM
emo-crats. Kind of has a ring to it. Nice post hilzoy, and nice post, Katherine. You two are exemplary in taking the time to try to understand all of this. Me, I just throw up my hands and get frustrated.
Posted by: praktike | March 20, 2005 at 04:06 PM
one last thing: I think all of the above makes what's going on more explicable, but it does not really make it any more excusable.
Posted by: Katherine | March 20, 2005 at 04:15 PM
In Terri Schiavo's case, the statements of various witnesses were heard, considered, and evaluated for credibility. On the basis of these statements, the court found that she would not have wanted to be kept on a feeding tube.
Is the court infallible? All the legal machinery in the world plainly does not preclude the possibility that the court's findings of fact, upon which rest the bulks of its decisions, and the others flowing from it, could be horribly wrong -- wrong enough to result in the cruel and unjust death of a helpless woman.
Michael Schiavo is manifestly not credible. He is a bigamist whose public relationship with another woman calls into profound question his integrity as a husband and a legal guardian. The diagnosis measures he has allowed do not rise to the level routine for patients complaining of acute lower back pain.
Or consider the expert witness relied upon by the court:
Now I am not a lawyer or a bioethicist, but if this is the integrity of an admirable legal process, then I'm a donut.
Posted by: Paul Cella | March 20, 2005 at 04:35 PM
A few more points. First, I think Katherine is probably right about the motivations of the House Republicans and the Senate Democrats. So I revise my comments to refer to the motivations of the Senate Republicans, whose views seem to have prevailed. Which is worse, the cynicism of passing a bill aimed only at one person or the massive violation of autonomy involved in trying to pass a bill aimed at all similar people I cannot say.
Second, after I wrote this I went off to eat a late lunch, and watched the news as I did so. A lot of commentators were talking about this as if it were about the value of Terri Schiavo's life. It is not. If I had terminal cancer and denied chemo, and a court upheld my denial, it would not be passing judgment on the value of my life, but on the question whether my wishes should be upheld. Similarly here. It is not, after all, as though we think that people with really, really valuable lives should not be able to decline medical treatment, or that their views about what happens to their bodies can be overridden.
Third, I think it's important to underline the point that as far as the law is concerned, taking out a feeding tube does not count as killing someone, but as not subjecting them to further feeding when they do not want to be fed. (Consider: one could achieve the same result by leaving the feeding tube in but not putting any more food into it.) It looks like killing someone since it involves doing something. But legally it isn't.
Leaving the law aside, while there are important moral distinctions between doing things that cause X and merely refraining from doing things that prevent X, that difference itself is probably not the crucial one. Consider: most people think that there's a difference between killing someone and not taking steps to save them. That's why the fact that most of us do not give all our disposable income to charities that save lives does not, in most people's eyes, make us murderers. Now suppose I write out a check to some charity, but decide not to put it in the envelope and mail it. That's "not saving lives". Suppose instead, however, that I write the check, put it in the envelope, put the envelope in my mailbox where the mail person normally picks up the mail; and then, on further reflection, conclude that I can't afford it. If I go out to the mailbox and retrieve my envelope before the mail person picks it up, does the fact that I am doing something to prevent the money from getting to the charity, and not just failing to send it, mean that I am guilty of murder? (Example from a philosopher named Shelly Kagan.)
In any case, there's a really important practical reason to treat removing a feeding tube (or a respirator) not as 'killing' but as 'withholding future treatment'. Doctors are not allowed to kill, but they are allowed to withhold treatment in accordance with a patient's wishes. If removing a feeding tube or a respirator counted as 'killing', then once it was in place, it could not legally be removed. Now: there are lots of people who do not want to be kept alive if (for instance) they would have to spend the rest of their lives in a hospital, hooked up to machines. And there are a lot of operations and other medical interventions that have a good chance of curing the patient, but also a non-negligible chance of leaving them in the situations these patients do not want to be in. Often these operations involve the temporary use of feeding tubes and ventilators. If it were not legal to remove feeding tubes and ventilators once they had been put in place, then patients would have to decide before the operation whether the chance of being cured was worth the chance of ending up hooked up to machines (or whatever.) If they really didn't want to end up hooked up to machines for the rest of their lives, they might forego treatment that had a good chance of curing them in order not to be stuck in a situation that was odious to them. Because feeding tubes and ventilators can be removed, however, these patients can undergo treatment and then, if it doesn't work, have the feeding tube or ventilator removed. That is: they can take the chance that they'll be cured without having to weigh it against the chance of being stuck in a position they don't want to be in, since if the treatment doesn't work, they can then have the feeding tube or ventilator removed. This saves the lives of those patients who, faced with this choice, would forego treatment, and protects the autonomy of those who would undergo it, but who do not want to be forced to live under certain conditions.
Posted by: hilzoy | March 20, 2005 at 04:36 PM
It's a shame Ms. Schiavo isn't a retarded convicted murderer in Texas or suspected terrorist up for rendition. Then there might not be so much faith in the judge's wisdom, "expert" witnesses, and interested parties' motives. Perhaps then we'd simply focus on doing everything we can to make sure we didn't make some grave irreversible error.
The hypocrisy is so stunning that it boggles the mind. Most republicans I imagine will cop to the hypocrisy regarding Federalism and gov't intrusion because protection of innocent life is one of the few agreed upon purposes of government. How others justify theirs, and for what greater principle remains beyond me.
Posted by: Macallan | March 20, 2005 at 04:37 PM
Thanks very much, Katherine (and, a fortiori, thanks, hilzoy!) I just had a heated discussion about the Schiavo case with my wife; because she is a very busy Wall Street attorney, her views were the same 'off the top of my head' ones that I had when Jeb Bush got interested in this case. Nothing has changed since then except the infection of vast blocs of the public by impassioned stupidity and, lately, Congressional intervention. Feeding tubes are removed, if not every day, then as a matter of course, and even regretful parents who think it's wrong don't go to court - apparently. They don't go to court again and again - who's paying all those legal bills?
In short: why is Karl Rove interested in Terry Schiavo? What does he see that we don't yet see? Why has so much political capital been committed to this case?
And who's right here, bottom line, hilzoy or Katherine? Is Congress fearful or fearless? Would a broad bill be popular or not?
Posted by: R J Keefe | March 20, 2005 at 04:38 PM
On the issue of whether Schiavo would suffer from having her feeding tube removed or not: She is in a persisent vegetative state, but is not brain dead so it is possible that she might suffer distress on some level. However, there is an easy way around this: just make sure she is given adequate amounts of narcotics to keep any cortex that might still be functioning in a sleep state. Since she is at a hospice, I expect that her doctors are very skilled at easing people's suffering in their last days of life and are probably seeing that this is done.
Posted by: Dianne | March 20, 2005 at 04:39 PM
Paul Cella: In finding that Terri Schiavo would not have wanted to be kept alive in her current condition, the court did not rely on Michael Schiavo's word alone. Nor, frankly, do I see how the fact that he is living with another woman calls his honesty into question. As to the MRI question: I refer you to the various medical citations I have given. In particular, Rivka, who writes:
Posted by: hilzoy | March 20, 2005 at 04:43 PM
"It's a shame Ms. Schiavo isn't a retarded convicted murderer in Texas or suspected terrorist up for rendition. Then there might not be so much faith in the judge's wisdom, "expert" witnesses, and interested parties' motives. Perhaps then we'd simply focus on doing everything we can to make sure we didn't make some grave irreversible error."
Irrelevant bomb-throwing that has nothing to do with the facts of this case.
Posted by: praktike | March 20, 2005 at 04:47 PM
Yes Mac, the hypocrisy is so stunning that it boggles the mind. The president, who now seems oh so concerned over the fate of Mrs. Schiavo, signed a law when he was Governor of Texas allowing withdrawal of treatment (including removal of a feeding tube) from terminal patients who can not pay.
Oh...maybe that's not the hypocrisy we're talking about.
Posted by: Chuchundra | March 20, 2005 at 04:51 PM
Macallan: "It's a shame Ms. Schiavo isn't a retarded convicted murderer in Texas or suspected terrorist up for rendition. Then there might not be so much faith in the judge's wisdom, "expert" witnesses, and interested parties' motives. Perhaps then we'd simply focus on doing everything we can to make sure we didn't make some grave irreversible error."
Let's be clear: in the case of extraordinary rendition, part of what I find objectionable is the fact that there is no trial at all. In both that case and the case of convicted murderers, another part of what I find objectionable is that there are some things I do not think the state should do, and that list includes killing people, torturing them, and sending them off to be tortured by others. In this case, there is also something I think the state should not do: force medical treatment on people against their will. It is for this reason that I hold the views I do in this case.
An error on either side is irreversible. If Terri Schiavo dies, she cannot be brought back to life. If we forcibly feed her against her wishes, we cannot un-violate her autonomy. You may think that the first error is the worst. I would agree if we were discussing 'violations of autonomy' and 'dying' in the abstract, without the details (so that as far as we knew, what was at issue could be a minor violation of autonomy and murder.) In this case, however, respecting the patient's autonomy simply means: acceding to her view about which is worse, dying or being kept alive under these conditions. If she preferred to die, then you are irreversibly inflicting on her something she took to be worse than death.
Posted by: hilzoy | March 20, 2005 at 04:52 PM
I should also note that accusations of hypocrisy violate the posting rules. Asking why our views are not inconsistent is, of course, not.
Posted by: hilzoy | March 20, 2005 at 04:54 PM
Paul Cella: He is a bigamist
I don't believe he is. To the best of my knowledge and belief, Michael Schiavo is still legally married to Terri Sciavo, and he is not legally married to any other woman. His personal life is really none of your business: as someone else has already pointed out, the fact that he lives with a woman he isn't married to while his wife is still technically alive doesn't make him automatically dishonest.
Posted by: Jesurgislac | March 20, 2005 at 04:56 PM
Jesurgislac:
Common law marriage.
[The] fact that he lives with a woman he isn't married to while his wife is still technically alive doesn't make him automatically dishonest.
Perhaps not, but it sure as hell calls into question his integrity as a legal guardian. By definition he has violated the vows he made to Terri; thus his word of honor is open to question.
Posted by: Paul Cella | March 20, 2005 at 05:00 PM
Paul, he has a life to live, and the doctors have told him that Terri does not. I think it's reasonable for him to want to move on.
Posted by: praktike | March 20, 2005 at 05:09 PM
Mr. Cella's never heard of common-law divorce.
"By definition he has violated the vows he made to Terri"
This is also quite amusing. John Thullen, are you taking notes?
Posted by: rilkefan | March 20, 2005 at 05:09 PM
Common law marriage
I'm confused. I thought Michael Schiavo lives in Florida? Florida doesn't recognise common-law marriage, ergo, Michael Schiavo can't have one. What you mean is, he's living with a woman he isn't married to.
By definition he has violated the vows he made to Terri
Well, true: by the strict definition, he's committed adultery, having sex with a woman who is not his wife. But the idea that someone who commits adultery is intrinsically not an honest person is, really, absurd: and most people would realistically acknowledge that, as Terri hasn't been conscious since 1990, and has been brain-dead since 1996, it's unreasonable to expect that Michael shall be living a celibate life.
Posted by: Jesurgislac | March 20, 2005 at 05:13 PM
The Schiavo case -- a perfect conflation of the dark heart of modern Republicanism. This is the use of deceit and huckster marketing to promote a cynical political agenda. It is starkly exposed here -- conservatives that stand mute deserve being lumped into this characterization of their political position.
1. Lie about the Schiavo medical condition -- since the schtick won't work if we argue from the actual facts regarding her condition -- just make up bogus ones.
2. Lie about the husband to demonize him -- since the schtick won't work if we truthfully examine his behavior -- slander him with bogus allegations. These include:
a) that he does not care (spent eight years searching for anything that could help, even though her condition was obviousy gone from the beginning) and refer to his new relationship as proof;
b) that he is in it for the money, except that money for her care was set aside from the beginning out of his reach (a common procedure in these types of personal injury cases), and there is very little left, with a great deal having been consumed by the court appointed guardian who ended up independently advocating for pulling the feeding tube. Those funds were consumed because of the vigorous right wing litigation to prevent the result -- not by her husband;
c) darkly suggest that her condition was the result of foul play probably perpetrated by the husband. This is the worst Big Lie.
3. Lie about the evidence and the court process to date that adjudicated the decision -- the husband and several friends testified that Schiavo would not want to live as a vegetable. An independent guardian ended up litigating for Schiavo's feeding tube being pulled -- the litigation was not directed by her husband. Court appointed doctors examined Schiavo extensively and repeatedly, as did doctors for the parents. The court reviewed all of this and had to make its decision based on "clear and convincing evidence" -- an obscure standard of poof in civil cases that is only slightly less difficult that "beyond a reasonable doubt." There is nothing new to examine, and no grounds for claiming that this proceeding was somehow improper.
4. Present deliberately misleading evidence; the most famous is the edited videotapes of Schiavo that pretend that she is responsive, except that the deleted portions show that her "responsive" actions are repeated randomly without any attribution to outside stimuli. The court noted this in making the decision. There are legions of additional items, including medical "experts" using the case to schill their agendas by claiming they have potential treatments available (there is no medical evidence that they can do anything other than self-aggradize). This is the type of voodoo science that Repubs decry when drug companies must defend liability suits.
5. Trash all relevant legal doctrines with legislative manueverings to profit from the issue, since this is a political opportunity;
a) issue subpoenas to require Sciavo to appear and "testify" and threaten doctors with contempt because removing the feeding tube would interfere with her being able to appear -- that is sheer nuttiness;
b) pass a law to require "de novo" review of the case in federal courts. This means that the federal courts are instructed to ignore all state law proceedings to date, and start all over again. This is a startling constitutional transgression, and a perverted legal policy.
6. Pretend that the right cares about the plight of comatose patients whose medical care is being withheld and will therefore die. Except that they could care less. If Schiavo was in Texas, a law signed by Bush while governor would permit the hospital to pull the plug over the family's objections if there was no further money to provide for care. Its happening right now in other cases.
Also, to preserve upper-income tax cuts, vote at almost the same time to cut medicaid to the states so that there will not be money available for such care from government programs -- thereby insuring that the comatose without money (or without Schiavo's political appeal) will die.
So, take advantage of an emotional situation for cynical partisan reasons, and overlay the issues with a web of lies to hype it. As for "policy," pretend that you care while advocating elsewhere policies that insure the opposite result in most cases. And pervert the law to achieve these ends.
Posted by: dmbeaster | March 20, 2005 at 05:15 PM
[b]Paul Cella[/b], you stated:
Is the court infallible? All the legal machinery in the world plainly does not preclude the possibility that the court's findings of fact, upon which rest the bulks of its decisions, and the others flowing from it, could be horribly wrong -- wrong enough to result in the cruel and unjust death of a helpless woman.
I don't know your views on the death penalty -- I assume you oppose it?
This whole thing is so sad. Most of the people pontificating do not have anywhere near enough information to make the statements they are making. It's a tragedy for all involved, but it is not unusual. These kinds of things happen every single day. Expensive technology and sophisticated trauma care save the lives of people whose families must bankrupt themselves to provide lifelong care because we do not provide the funds for the lives saved. Our laws and ethics are nowhere near coming to grips with what technology can do.
Several thoughts:
(1) Some of the people inserting themselves into this case have actually helped end life support in other cases -- cases which have been ignored by the same congressmen that are holding press conferences about Terri.
(2) As Rivka's post points out (she and I both work in the area of neuroscience), it makes no sense to do functional studies on missing or irreversibly damaged anatomical structures.
(3) One of the most devoted wives I've ever known continues to care for the man she divorced after his severe traumatic brain injury. She and the son they had together (their daughter was killed in the same vehicular homicide that injured her father) now live with her second husband and new daughter. I am so happy that she has found new happiness, as I admire her continuing devoted care for her first husband, who must live with full-time skilled nursing care in a group home.
She is not a bigamist.
I respect those who have a consistent view in this matter and see the removal of this feeding tube as "killing" Terri. Those people oppose the death penalty, all abortions, and may even be pacifists. They weep for *all* the families, not just Terri's.
But I don't understand anyone who tries to assert that Tom Delay, and many others, are acting out of anything other than political motivation. How can you support someone with such consistently bad behavior, just because he does what you want in this one circumstance?
Posted by: Opus | March 20, 2005 at 05:16 PM
I stand corrected on common law marriage.
Jesurgislac:
But the idea that someone who commits adultery is intrinsically not an honest person is, really, absurd: and most people would realistically acknowledge that, as Terri hasn't been conscious since 1990, and has been brain-dead since 1996, it's unreasonable to expect that Michael shall be living a celibate life.
On the contrary. Adultery is dishonesty. To commit it is to be dishonest.
A marriage vow perforce implies the possibility of a vow of celebacy. Accident or disease could destroy the sexual capacity of one spouse; this does not change the nature of the vow. "In sickness and in health . . ."
Posted by: Paul Cella | March 20, 2005 at 05:26 PM
So should I infer that the fact that George W. Bush has lied that he is likely to be unfaithful?
Posted by: hilzoy | March 20, 2005 at 05:29 PM
Anyone know what vows the Schiavos made?
I hope Mr. Cella has never said a lie in his life, invalidating the worth of his word.
Posted by: rilkefan | March 20, 2005 at 05:30 PM
Cella:
Is the court infallible?
Opus:
I don't know your views on the death penalty -- I assume you oppose it?
A good point and an equally good counter-point.
As a lawyer, my initial impression of the Schiavo case was concern that Florida law permits the decision to be made without a written document evidencing intent. As a matter of legal policy, this situation presents a trade off of competing values -- requiring greater certainty of proof (the writing) which will end up resulting in meritorious cases being denied, but also prevent with certainty unmeritorious cases from prevailing. However, the actual facts of the Schiavo litigation do not support a determination that this particular proceeding was improper.
What is constantly missing from the right's medical discussion is how someone whose cerebral cortext has been destroyed and replaced by inert spinal fluid can be revived in any way. There is no medical science that provides even a glimmer of hope in such situations. Arguments to the contrary rely on "junk science."
Posted by: dmbeaster | March 20, 2005 at 05:31 PM
Do you want to know a strange and irrelevant fact? (If the answer is no, too bad.) Judge Greer (the judge in the case), besides being (I believe) a registered Republican, was Jim Morrison's college roommate, before Morrison decamped for LA.
Posted by: hilzoy | March 20, 2005 at 05:37 PM
Opus:
The other cases you cited (especially the one concerning the baby boy in Texas) are horrifying.
Posted by: Paul Cella | March 20, 2005 at 05:42 PM
Paul Cella: The other cases you cited (especially the one concerning the baby boy in Texas) are horrifying.
Indeed. I am hoping that others on the religious right of the Republican party will take a long hard look at Tom Delay and George W. Bush's lack of protest at Sun Hudson's death - George W. Bush signed the law that enabled Sun's feeding tube to be removed - and wonder why Terri Schiavo has been singled out for Federalized protection. Why Terri, and not Sun?
Posted by: Jesurgislac | March 20, 2005 at 05:44 PM
"I hope Mr. Cella has never said a lie in his life, invalidating the worth of his word."
Not true. We just saw that he lied about common law marriage in Florida. But thankfully, he admitted his mistake.
Posted by: praktike | March 20, 2005 at 05:54 PM
Excellent post; though you can't hear it, I'm blinking strenuously in hopes of generating applause.
Posted by: Coprolith | March 20, 2005 at 05:55 PM
The Schiavo case -- a perfect conflation of the dark heart of modern Republicanism. This is the use of deceit and huckster marketing to promote a cynical political agenda. It is starkly exposed here -- conservatives that stand mute deserve being lumped into this characterization of their political position.
The perfect illustration of the dark heart of something.
Posted by: Macallan | March 20, 2005 at 05:57 PM
Opus's link to Mark A R Kleiman's entry on the death of Sun Hudson in Texas only intensifes my curiosity about the roots of Rovian interest in Terri Schiavo. When Karl Rove's own home base enforces a law enacted with the approval of his own biggest client, to produce a result absolutely contrary to the one sought by the party that appears to take no action without consulting him, I'm, ahem, curious.
Posted by: R J Keefe | March 20, 2005 at 05:57 PM
A few points. First of all, I don't think the issue of whether Mrs. Sciavo either is conscious or has any chance, however small, of regaining any small bit of consciousness is settled with as high a degree of certainty as you claim. Were I convinced of that fact with an extremely high degree of certainty, my opinion on the issue might change, but I would also argue that killing someone who wishes to live is an immensely less favorable outcome than keeping someone on life support against their wishes after they have lost all hope of ever regaining consciousness. I will choose the latter if I see any risk of the former, and I do in this case. If she is unconscious and will never regain consciousness, little harm can be done to her that compares in any way to the harm of being mistaken as to her wishes.
Second, I find it amazing that people would be willing to accept such a low standard of evidence about