Sunday, March 20, 2005

Right to die, or right to live?

UPDATE: The House has passed the bill (just after midnight, following three hours of debate).

UPDATE: Jurist reports that the Senate has passed a bill allowing Schiavo's case to be heard de novo by a federal court.

The biggest constitutional news of the week is unquestionably the battle over Terry Schiavo's fate (index to documents and coverage available at findlaw.com; Professor Dorf's Oct. 2003 commentary on the constitutional implications here). Schiavo suffered a brief heart attack fifteen years ago when she was only twenty-five. The attack left her severely brain damaged in what doctors have described as a persistent vegetative state. While she breathes on her own, she depends on a small tube inserted in her stomach for nutrition and hydration (she cannot swallow on her own). Medical opinions accepted by the Florida courts indicate that she will never recover. In other words, Terry Schiavo's intellect, memory, higher brain function, and ability to communicate are gone; only her body remains.

Florida law unquestionably leaves the decision whether to refuse treatment to the patient, but Schiavo left no living will or health care proxy. In cases like this one, the courts must evaluate testimony from next of kin in order to discern the patient's wishes--hence the seven-year, nineteen-judge-long war between her husband, Michael Shiavo, and her parents, the Schindlers. While Michael insists that Terry told him she would never want to be kept alive by artificial means, the Schindlers swear that Terry responds to them and that she must continue to be fed. Nevertheless, throughout the long history of the case, the judges have consistently found that Michael Schiavo is the appropriate person to make medical decisions on his wife's behalf.

Family law matters belong to the state courts unless a federal constitutional violation has occurred. House Republicans have submitted a compromise bill that would force the Schiavo case into the federal courts on the grounds that withdrawing Ms. Schiavo's feeding tube violates her right to due process. The bill does not mandate reinsertion of the tube; rather, it requires a de novo examination of the medical evidence relating to her condition.

It seems to me, though, that the more appropriate question is whether the correct decisional surrogate is Mr. Schiavo or the Schindlers. Once that determination is made, the courts should no longer play a role in this most intimate of family matters.

And who among us could say what the right decision is? Ms. Schiavo's situation, and that of both branches of her feuding family, is undeniably tragic. There is no good answer to the questions posed by Terry Schiavo's condition. Her body survives. Does her soul? No woman or man can presume to say. Her parents believe that God can still bring her back. Who are we to deny their hope? But who are we to force her to continue such a marginal and precarious existence?

What right have we--what right have our elected officials--to get involved in this decision at all?

The judicial and legislative branches have interfered with this private family matter long enough. These decisions should lie between family members, their consciences, and their God. The fifteen-year-long court battle, the repeated withdrawal and reinsertion of the feeding tube, the highly-publicized demonstrations outside Schiavo's hospice, the politicization and grandstanding surrounding her condition: all this theater demeans her dignity and violates her privacy. It needs to stop.

And rather than forcing a vote on legislation that would mandate federal review of this decision, our elected representatives ought to educate their constituencies about the critical importance of living wills and honest communication with family members about personal wishes in the case of incapacitation.

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