Death by court order: what judges have wrought

National Review, April 25, 2005 by Andrew C. McCarthy

THE death certificate for Theresa Marie Schiavo should record that she was killed by court order. The state courts flagrantly violated the democratically enacted laws of Florida--laws expressly intended to protect the incapacitated and vulnerable whenever there is doubt about their true condition or their desire to live. When the Congress and the president of the United States took extraordinary steps at the end to have the case reviewed, the federal courts haughtily ignored them.

The courts' overreaching began in 1990, the very year Terri Schiavo, then 26, was stricken. The Supreme Court that year decided the Cruzan case, which concerned another woman's tragedy. Here, the Court held both that the Fourteenth Amendment guaranteed a right to decline medical treatment, and that medical treatment included basic sustenance. Further, the Court held that a surrogate could exercise this right for people who (a) were in a "persistent vegetative state" (PVS) and (b) had convincingly expressed a desire not to be sustained if they ever reached that state.

Both tests were dangerously imprecise. PVS combines the total loss of higher cognitive functions with the persistence of rudimentary reflex responses. A person who is minimally conscious and responsive to stimuli is not in a PVS. Because the condition is so difficult to get a precise fix on, some experts peg its misdiagnosis rate as nearing one out of every two cases. The Court's standard for intent, meanwhile, did not require a reliable piece of writing, such as an authenticated will. Hearsay would do the trick.

States then had to draw up legislation to confine the obvious potential for abuse. In 1992, Florida enacted laws that followed Cruzan in placing the will of the individual above any concern for the intrinsic value of life. Those laws, however, insisted that before sustenance could be withdrawn it had to be reliably established that the individual had really wished it so. Whenever there was ambiguity about an incapacitated person's desires, Florida's courts were enjoined "to defend life"--to presume that the person wanted nourishment.

Other safeguards were enacted. PVS was tightly defined as a "permanent and irreversible condition of unconsciousness" with no "voluntary action or cognitive behavior of any kind" (emphasis added). Two competent physicians had to diagnose PVS and say that there was no reasonable probability that the patient would improve. Surrogates for an incapacitated patient could cut off sustenance only after demonstrating that the stricken person would have so decided. As an additional safeguard, Florida law expressly prohibited judges from assuming the dual role of guardian of the patient. Finally, all these findings had to be proved with "clear and convincing evidence." This standard, although high for such civil cases, is much less demanding than the "beyond a reasonable doubt" standard that applies in criminal cases. Florida was thus opting to let judges put vulnerable, incapacitated patients to death more easily than they could send criminals to jail.

In Terri's case, the submitted evidence fell laughably short of inspiring a confident conclusion that the patient had much thought about whether--let alone decided that--she wanted to die if she ever became incapacitated. The contention that she was actually in a PVS was doubtful. She was finally killed by starvation and dehydration, over 13 excruciating days, only because the judges, in their imperious wisdom, decided that this was best for all concerned.

Terri also appeared to be responsive to stimuli, responsive to the presence of familiar persons (such as her parents), and capable of making noises. Experts debated whether these were indicative of minimal consciousness or mere reflex response. Definitive clarity might have been provided by functional magnetic-resonance imaging or positron-emission tomography scans, tests that nowadays are standard for deciphering the extent of brain damage. But Terri's legal guardian, Michael Schiavo, refused to have these tests done, relying on mere computer-aided tomography scans, which provide far less information.

If the evidence of PVS was equivocal, the proof that Terri wanted to die was ridiculous. At a 1992 civil trial--at which he was awarded over a million dollars in medical-malpractice damages (the lion's Share as a trust for Terri's continued care)--Michael Schiavo not only never hinted that Terri had opted against being maintained if incapacity befell her, he actually told the jury that he was studying nursing to become a better caretaker because he fully expected his young wife to survive for her normal life span.

A CONVENIENT RECOLLECTION

After the jury award, Schiavo suddenly remembered, some seven years after Terri had been stricken, a few offhand remarks his wife had purportedly made about not wishing to live if ever she became "a burden to anybody" or had to be maintained by "artificial" means. This was a prelude to his first energetic effort, in 1997, to have circuit-court judge George Greer of Pinellas County withdraw food and water from Terri. Her parents vigorously objected, and Judge Greer was moved to appoint as guardian ad litem an independent attorney, Richard Pearse.