There are many aspects of the Terri Schiavo case about which I do not have clear views. (My original post on this topic seems to have given people the impression that I did; but what I was really trying to do in that post was just to say what I took the relevant issues to be, since I thought they had been mischaracterized.) I have no views about the characters of the principals in the case, since I don't know them, and since in general I try not to leap to conclusions about people based on their conduct when they are grieving. I have no knowledge of what Terri Schiavo would have wanted other than that summarized in the various decisions on that topic. In general, all the information I have about the actual facts of the case is derived from court documents and some media reports; and that leaves me thinking that one of the few things I can be certain of is that when it comes to those facts, I am not in a particularly good position to judge.
But there are some things I do feel more confident of, since they do not depend on factual matters of which I am ignorant. And one of them is this: the judges in this case have followed the law. I am not a lawyer, of course. But I have read the decisions and statutes, and it seems pretty clear to me that the law has been followed. Moreover, as I said somewhere, no one that I know of has questioned the competence of the lawyers or the number of appeals that the various parties have received. Below the fold I will detail the statutes bearing on the central points at issue, so that those who are lawyers can let me know whether I am wrong. (I'm putting this part later because it is long.)
If I am right about this, then there's something that really puzzles me, namely: why are so many conservatives saying that this case is about judicial activism? Here's Bill Kristol: "Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a "robed charade," to rise up against our robed masters, and choose to govern ourselves. Call it Terri's revolution." Here's Ann Coulter: "What was supposed to be the "least dangerous" branch has become the most dangerous – literally to the point of ordering an innocent American woman to die, and willfully disregarding congressional subpoenas. They can't be stopped – solely because the entire country has agreed to treat the pronouncements of former ambulance-chasers as the word of God." Thomas Sowell: "Judges who ignore the laws passed by elected representatives are slowly but surely replacing democracy with judicial rule." Alan Keyes: "Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches in order to assert an exclusive and tyrannical control of public standards and conduct." And those are just the quotes I found first, without even canvassing the blogs.
In some cases, I think it's because the courts did not grant a temporary restraining order despite Congress' intervention. (More on that below.) But in some cases -- for instance, in the Coulter quote above -- the idea seems to be that this entire case is the result of renegade judges. And if I'm right about the law, then this is completely wrong. There are all sorts of features of existing Florida law which one might argue in favor of changing. But the people to whom such arguments should be addressed are the legislators, not the judges. No one who rejects judicial activism should say, with John Gibson of Fox News, that our chief executives should "protest the complete disregard courts and judges have shown here, in this case, for facts outside the law." (Emphasis added.)
As I see it, in this case the judges have stuck to the law scrupulously, despite enormous political pressure. (Surely it has occurred to some of them that their chances of being appointed to a higher judgeship by the Bush administration have gone glimmering.) Their job is to interpret the law, and they have done so. For this they deserve our thanks, not our condemnation. For while I have a different view of interpretation than, say, Sebastian, and thus disagree with him about how to draw the line between interpreting a law and rewriting it, I am as convinced as he is that judges should be in the business of interpreting existing laws, not writing new ones. And it seems to me that that is what the judges in this case have done. As Matt Conigliaro of Abstract Appeal wrote:
"I receive email after email telling me that no judge has the authority to end someone's life. That life must be preserved where there is even unreasonable hope, or where there is any uncertainty regarding the person's wishes. That oral evidence can never be clear and convincing. That removing "life support" is okay, but removing a feeding tube is barbaric and unacceptable. Perhaps those sentiments are noble, but they are not the law, and it was not within Judge Greer's power to make them the law. It is perfectly acceptable to disagree with the law on these points, but to condemn the judge for following the law as it exists is irresponsible and contrary to the basic principles on which our government, with its separate branches, was created."
Moreover, we should absolutely not urge either citizens or politicians to defy them, as the following commentators do:
William Kristol, already quoted: "Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a "robed charade," to rise up against our robed masters, and choose to govern ourselves. Call it Terri's revolution."
John Gibson, Fox News: "So Jeb, call out the troops, storm the Bastille and tell 'em I sent you."
Bill Bennett: "It is a mistake to believe that the courts have the ultimate say as to what a constitution means. (...) It is time, therefore, for Governor Bush to execute the law and protect her rights, and, in turn, he should take responsibility for his actions. Using the state police powers, Governor Bush can order the feeding tube reinserted. His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less."
Ann Coulter: "As a practical matter, courts will generally have the last word in interpreting the law because courts decide cases. But that's a pragmatic point. There is nothing in the law, the Constitution or the concept of "federalism" that mandates giving courts the last word. Other public officials, including governors and presidents, are sworn to uphold the law, too. (...) Just once, we need an elected official to stand up to a clearly incorrect ruling by a court. Any incorrect ruling will do, but my vote is for a state court that has ordered a disabled woman to be starved to death at the request of her adulterous husband."
Alan Keyes: "When time is of the essence, necessity authorizes the executive to safeguard the security of the constitution before citizens and the polity suffer irreversible damage. Terri Schiavo's survival depends on Gov. Bush's faithful execution of this responsibility, and the survival of American self-government on the willingness of all those in a like position to faithfully execute the duties of their high office."
Elizabeth Farah: "Gov. Bush, you have the right to exercise your authority to save this woman's life. You have the authority to reject a corrupt judge's corrupt decision. Remember when the pharoah issued the order that all Hebrew male infants should be killed? What did Moses' mother do? She broke the law of the civil authority. She saved the life of her son. (...) Jesus says that yes, you will have many detractors – people who will revile you for doing the right thing, but you will be rewarded greatly by God."
I could go on, but it's too depressing.
Obviously, I am not a conservative, nor do I normally try to tell conservatives what I think they should do. But the vilification of judges, and incitements to disobey the law, are serious business. If I were a conservative, and had some credibility in conservative circles, I would think hard about the legal facts of the case, figure out what legal mistakes, if any, the judges actually made, and then try to convince my fellow conservatives not to blame the judges for the rest. If you think that in cases like this, we should require written evidence, or proof beyond a reasonable doubt, your problem is with the Florida legislature. If you think that artificial feeding and hydration should not be considered 'medical treatment', or that an estranged husband should not have the right to make decisions for his wife, ditto. In none of these cases did judges just "invent" the law; the legislators did. The judges did more or less exactly what we want them to: they applied the laws as written.
The rule of law matters. And maintaining the rule of law requires that we criticize judges, and urge people to defy them, only when they have actually done something wrong. If any of you agree, I think it's important to say so.
On to the law. The best source of information and quite balanced commentary is Abstract Appeal. Here are some of the crucial legal issues in this case, together with some relevant statutes and cases:
- When a patient has not executed a living will, and is not competent to decide whether to accept or reject treatment, how should such decisions be made? Florida law answers as follows (emphasis added):
"765.401 The proxy.--
(1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient's spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient; (...) (goes on through various further options)
(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.
(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest."
That is: Florida law explicitly holds that, in a case like Terri Schiavo's, in which there is no living will, advance directive, or durable power of attorney, a decision to withdraw life-prolonging measures can be made on the basis of "clear and convincing evidence" of the patient's wishes. That was the standard used in this case. Judge Greer found (pdf) that there was 'clear and convincing evidence' that she would not have wanted a feeding tube, and his decision was upheld by the Second District Court of Appeal (pdf), and the Florida Supreme Court (pdf).
Moreover, while Michael Schiavo asked the court to determine what his wife would have wanted, the statutes make it clear that as her spouse, he had the right to decide what she would have wanted even if her parents did not agree.
It's also worth noting in this context that the US Supreme Court has upheld (in Cruzan v. Director) the right of states to use the "clear and convincing evidence" standard in such cases. From Justice Rehnquist's majority opinion: "In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."
And the Florida Supreme Court has held the following (ht Abstract Appeal): "Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged."
- Does Florida law grant patients the right to refuse artificial feeding and hydration? Yes. From sec. 765.101 (emphasis added):
"(10) "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain."
Recall that the statute cited in the previous section states that "a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent." This makes it clear that a proxy's right to make health care decisions for an incompetent patient includes the right to refuse or withdraw life-prolonging measures, including artificial nutrition or hydration.
- Do these laws apply to people in permanent vegetative states? Yes. Sec. 756.401, the statute governing proxy decisions referred to above, states that proxies are bound by 765.305, which in turn says the following:
"(2) Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:
(a) The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.
(b) The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal."
- What procedures are used to determine whether or not someone is in a persistent vegetative state? Answer:
"765.306 Determination of patient condition.--In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient's attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient's medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn."
This procedure was followed in the original case (pdf) about whether or not to withdraw Terri Schiavo's feeding tube. (For discussion of the two doctors, see pp. 6-7.) In addition, there was a subsequent trial on the question of Terri Schiavo's medical condition. During this trial "the court heard testimony on separate days from the treating physician of Terry Schiavo and five board- certified expert physicians, two selected by the Petitioner, two selected by the Respondents and one selected by the court since the parties could not agree upon an independent fifth expert. This procedure was pursuant to the Mandate."
- Did the courts wrongly disregard Congress' intentions in declining to order Terri Schiavo's feeding tube to be reinsterted? I don't think so. Others have discussed this question in an earlier thread. So, to be brief: first, the law allows the case to be reheard de novo. It does not alter the standards for issuing temporary restraining orders. Those standards require that a case have a 'substantial likelihood of success on the merits'. The court determined (pdf) that this case did not.
That the courts reached this decision is not surprising. The Constitution grants the Federal Government, including its courts, jurisdiction over certain matters; all others are the provinces of the states. Congress cannot decide to make something a federal issue when it is not one: it has no authority over non-federal issues under the Constitution. For this reason, while Congress could order a federal trial de novo, it could not expand the issues that that trial could legitimately consider beyond existing federal issues. The federal issues at stake in this case are quite limited: as far as I can see, all that are even remotely plausible derive from the fourteenth amendment ban on depriving persons of life, liberty or property without due process of law. Given the extensive legal history of this case, it would be difficult to argue that Terri Schiavo was being deprived of life without what one would normally think of as a lot of due process. One could also argue that the fourteenth amendment requires "substantive due process" (meaning, roughly: something above and beyond a series of well-run trials), but it would be hard to argue that she had some such Constitutionally guaranteed right that had been violated given the Supreme Court's decision, in Cruzan (linked above), that allowing feeding tubes to be withdrawn on the basis of 'clear and convincing evidence' of the patient's wishes is constitutional. (I can't help noting here that Andrew McCarthy of the National Review seems to have discovered the joys of substantive due process arguments.)
If anyone thinks of legal issues I should have addressed, arguments I missed, or mistakes, let me know below and I will update this. I should also say that Kevin Keith has a good post on Dr. William Cheshire's affidavit here.