Politics & Policy

Ruling On Terri’s Life

Are courts encroaching on the right to live?

The world has moved on since the case of Terri Schiavo, whose husband sought to remove the feeding tube that kept her alive, briefly grabbed public attention last fall. But Terri’s life remains at risk.

Michael Schaivo, her parents, the state of Florida, and advocacy groups continue to fight over her future. She keeps losing where it seems to matter most–in court.

Terri collapsed in 1990, leaving her profoundly cognitively disabled. Her husband won a $250,000 settlement and a $1.3 million malpractice judgment, including money awarded for Terri’s medical care.

He then refused to fund such treatment and in 2000 moved Terri into a hospice, designed to care for the dying, rather than the living. Along the way he moved in with a woman who he describes as his fiancé and with whom he has had two children. Six years ago he petitioned to remove the feeding tube that kept Terri alive.

Last October, Michael won court approval to let her die. Within a week after her feeding tube was removed, Florida’s legislature empowered Gov. Jeb Bush to order the tube reinserted, which he did.

With the support of the American Civil Liberties Union, Michael is seeking to invalidate that legislation. Moreover, backed by Florida Sixth Judicial Circuit Judge George W. Greer, who has managed the case for years, Michael continues to block family access to medical information about Terri’s care.

Terri Schiavo’s case is a tragedy, a vibrant life struck down so mysteriously when so young. But despite her disabilities, she remains very much alive.

The court-appointed guardian ad litem, Jay Wolfson, says that she has a “distinct presence,” responsive to her family, even if her responses are not consistent. Several doctors have argued that she is not unconscious, let alone in a “pervasive vegetative state.”

Killing Terri–or, more delicately, allowing her to die–surely should be allowed only if that is what she wants, or would have wanted. But we don’t know that.

Michael claims that she said she desired “no tubes.” Backing him are his brother and sister-in-law, who said that she made off-hand comments that she wouldn’t want to live under such circumstances.

Her family never heard her talk in such terms. And Michael apparently told a girlfriend that he and Terri never discussed the issue. Nor did he bother mentioning it until after winning the malpractice lawsuit over her injury.

But such comments by Terri, even if true, hardly offer the certainty necessary to let her die, especially since she is not comatose. Indeed, a number of doctors and other experts have

testified that rehabilitative therapy, barred by Michael, could improve her condition, wean her off of the feeding tube, and perhaps help her to speak. Moreover, reports attorney Wesley J. Smith of the Discovery Institute, “affidavits filed by nurses who cared for Terri claim that she has responded to them, can speak, and can even swallow food.”

More fundamentally, Michael’s own credibility is in doubt, to put it mildly. Normally a spouse is the best representative of a disabled patient. However, it is not clear that he is acting, or ever has acted, on her behalf.

Sadly, questions go back to her initial injury. A noted New York pathologist, Dr. Michael Baden, discounted the diagnosis of a heart attack induced by a potassium imbalance; after reviewing the report of a bone scan taken after her collapse he observed that Terri had “a history of trauma.”

Of course, Dr. Baden’s assessment does not prove that Michael is responsible for her condition, as her family believes. But nurses report hearing him make such comments as “When is that bitch going to die” in the mid-1990s. The circumstances raise important questions, which are now being investigated by Florida’s Advocacy Center for Persons with Disabilities.

Indeed, there is much to review when it comes to Terri’s treatment. The state of Florida requires annual reviews of guardianship plans, installation of a proper guardian, proper management of financial assets, provisions of “necessary services and rehabilitation,” and much more. Arguably all of these statutory rights have been violated.

In any case, Michael clearly would benefit from Terri’s death. Not only is he the legal guardian of the trust fund holding what remains (after hefty attorneys’ fees) of the malpractice judgment, but he cannot wed his fiance so long as Terri lives. Maybe such clear conflicts of interest have not influenced his decisions. But maybe they have.

He’s done nothing to dispel such suspicions through his treatment of the family. For instance, in 1996, Terri’s parents won a court order requiring Michael to furnish them with annual guardianship reports and to notify Terri’s caregivers that they could answer questions from Terri’s family.

However, Michael has repeatedly failed to write or turn over guardianship reports. Moreover, Terri’s parents explain that hospice staff have refused to consult with them, saying that Michael barred them from doing so. Robert and Mary Schindler say they were not even aware of two episodes of vomiting, which could have result in Terri’s death, in February.

The frustrated Schindlers filed suit to hold Michael in contempt. But in late March Florida Circuit Judge George W. Greer rejected their motion on the grounds that Mrs. Schindler’s testimony was based on hearsay. He ignored the missing guardian reports.

As Schindler attorney Pat Anderson has told Wesley J. Smith, most court decisions seem to follow “The Rule of Terri’s Case.” Explains Anderson: “If following a legal procedure will likely result in Terri dying, it will be adhered to. But if a procedure could make that outcome more difficult to attain, it will not be followed.”

Consider the Sixth Judicial Circuit’s Chief Judge David A. Demers. Guardian ad litem Wolfson recommended giving Terri a swallowing test–and maintaining the tube if she passed–which Judge Demers rejected. Judge Demers also failed to renew Wolfson’s guardianship.

The case took an even more bizarre turn when Michael’s attorney accused the family of trying to inject Terri with an unknown substance, perhaps to lay the groundwork for ending their visits. They rejected his claim; after all, they observe, they, not Michael, have been trying to care for her. They also noted the ubiquitous presence of medical and security personnel during their visits. A subsequent investigation found no evidence of injections.

Now everyone is waiting for the most important court decision, before Judge W. Douglas Baird, also of the Sixth Judicial Circuit, on the challenge to the constitutionality of the Florida law which enabled Gov. Bush to intervene. Judge Baird barred the Schindlers from intervening to help defend the law and prevented the state from deposing opposition witnesses. An appellate court ordered him to go back and follow proper procedures. Whether doing so will cause him to change his earlier rulings is yet to be seen.

If the legislation is voided, Michael certainly will move to again remove Terri’s feeding tube. And, given the operation of Terri’s Rule, it is hard to imagine any court intervening to save her.

Although the most important immediate concern is Terri’s life, much more is at stake. The “right to die” has become a political issue in such states as Hawaii, Michigan, and Oregon. More ominously, the “duty to die” seems to be advancing in America as well as Europe.

Village Voice columnist Nat Hentoff warns of a “growing conviction among American doctors, bioethicists, and hospital ethics committees that it is ‘futile’ to try to treat certain patients, and therefore, medical professionals should have the power to decide–even against the wishes of the family–when to allow these valueless lives to end.” Put bluntly: Why waste time, effort, and money on hopeless cases?

Wesley J. Smith cites the suit by Leslie Burke, a British man suffering from a terminal neurological disease, against the National Health Service demanding that it be ordered to treat him even after he requires a feeding tube to live. Amazingly, in a 1998 case British doctors complained that the parents of a seriously disabled 12-year-old resuscitated him after he suffered respiratory failure. Judges later ruled that the decisions on his life belonged to his doctors.

It is easy to look at Terri Schiavo and ask, who wants to live like that? But David Jayne, who lives only through use of a ventilator, says that “I’m very passionate about the Terri Schindler-Schiavo issue, because I live it.” He explains that before contracting ALS he couldn’t have imagined living under such circumstances, but that I “still find meaning in life.” He warns: “It is incredibly wrong for society to decide who lives or dies based on their opinions of what level of quality of life is worth living.”

What is Terri’s opinion? We may never know for sure. But we do know that we don’t know enough to assume that she would prefer to be dead. “Terri’s Rule” should presume that life is sacred and worth preserving. Nothing has been presented in Terri’s case to overcome that presumption of life.

Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Ronald Reagan.

Doug Bandow is a senior fellow at the Cato Institute. A former special assistant to President Ronald Reagan, he is the author of Foreign Follies: America’s New Global Empire. He recently was a scholar-in-residence at the Centre for Independent Studies in Sydney, Australia.

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