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I had a chance the other day to download and read the original court decision that started the whole Terri Schiavo fracas (In Re Guardianship of Theresa Marie Schiavo, Incapacitated, Feb. 11, 2000, Cir. Ct. for Pinellas County, Fla.). To be honest, Judge Greer’s description of the decision process gives me jitters about how the legal system responds to artificial life-support situations. I don’t want to second guess Judge Greer, or all of the appeals courts that upheld him. I firmly believe that he carried out the law in a responsible manner. But I wonder if the law is truly ready for cases like this. Remember, the laws and procedures that apply to situations like this derive from English Common Law, which basically goes back to the Magna Carta. However, the technology that makes a Terri Schiavo situation possible only goes back maybe 25 years.
The first thing that you should ask about a legal case is, who is the moving party – who is starting the whole thing (in this case, initiating a request to terminate extraordinary medical efforts that were being used to keep a human body alive). Well, that’s not so hard; the moving party was Michael Schiavo, the husband of the late Ms. Schiavo. OK, next question: does the moving party have legal authority to request what he is requesting? In this case, yes, Michael Schiavo had such legal authority, given that as husband, he was the recognized legal guardian. So what about the parents? Were they just chopped liver? No, not quite. They were allowed to be heard in court. And they were. They hired an attorney who made legal and factual arguments, presented witnesses, and cross examined the witnesses presented by Mr. Schiavo. Even though a spouse trumps a parent with regard to legal authority over an incapacitated person, the parents still got their day in court.
In the decision allowing “discontinuance of artificial life support for Theresa Marie Schiavo”, Judge Greer made it clear that he carefully considered everything that both sides presented. He weighed up the veracity and relevance of all evidence, and found that it tipped, however slightly, towards the conclusion that Terri Schiavo would want the feeding tube removed if she could had envisioned the present situation while she was still conscious. That was the axis and the focal point of the law and the decision. That was what everything revolved around. And that’s where I’m having trouble.
NOT that I think that there was a murder here. I believe that for all practical purposes, Terri Schiavo was dead – dead UNTO HERSELF, that is, and dead for mind-conscious people like myself. But most people are more body-conscious (yes, there I go again, using a mind-body Cartesian dualism, the scourge of hip philosophers over the past 50 years or so; but maybe this case shows why that dualism was invented and retains its power). So, for many people, most notably Mr. and Mrs. Schindler, Terri was NOT dead, despite not having any brain or mind. Quick footnote: my brother said that he liked the pictures of Terri Schiavo as an attractive young woman, as she possessed a certain look – the svelte look of the 80’s, the “big hair” look. He said that he misses the “body consciousness” of that period. Not surprisingly, then, he feels that removing the tube was wrong. (Ironically, excessive body consciousness might have contributed to Ms. Schiavo’s heart attack.)
But let me go back to the first question for a moment. Judge Greer had no problem with Michael Schiavo’s authority as husband and guardian over Terri Schiavo. And again, I have no reason to think that the Judge was messing up. But I do have trouble with the law that he was applying (which, again, is based partially on unwritten Common Law principals and partially defined by written constitutions and statutory laws passed by our State and Federal legislatures). In a case like this, where the definition of life is fuzzy and a whole lot is at stake, I would like the law to require the judge to ask more questions. Such as, has the spouse in question been loyal and devoted entirely to the incapacitated spouse, just as we would expect in any other marriage? The answer in this case might be no.
Hey, not that I think that Michael Schiavo was evil or bad in finding another girlfriend and getting on with his life. It’s just that when the stakes are so high, maybe you can’t have it both ways – if you’re not the perfect husband, then maybe you shouldn’t have the biggest say when the question comes down to what is life and what is death. (I think that the law should still allow a not-quite-perfect husband like Mr. Schiavo to have SOME say, maybe a BIG say, but not THE say, as the law required here).
Now, back to the question of determining intent in a situation like this, where there are no written instructions. (If there IS a living will and it’s very clear that you don’t want your body kept going if you’re brain dead, no matter who thinks what about it, then the law must respect that – just my $0.02). Judge Greer based his decision on some casual comments that Terri Schiavo had made at some point to her husband and to his brother and sister-in-law. These comments indicated that she didn’t think that artificial life support in hopeless cases was such a good idea. I.e., Mr. Schiavo and his brother and sister-in-law testified in court as to what they remember Terri saying, and were subject to cross-examination by the parents’ lawyer.
In the decision, Judge Greer seemed to acknowledge that this wasn’t much to stand on. However, the cross-examination by the parents’ lawyer didn’t seem to fluster anyone, so the testimony was accepted as factual. The parents didn’t offer anything indicating otherwise (other than some comments that Terri made about the Karen Ann Quinlan case when she was around 12 years old, which the Judge discounted because of Terri’s age). So, using standard legal mechanics, a judgment was rendered: Terri would want to pull the plug here.
What bothers me about the legal process (again, not about Judge Greer, who was doing his job) is that it tried to come up with a simulation of Terri Schiavo’s mind, i.e. what she would have wanted if faced with this terribly complex and wrenching situation. More troubling, it based that simulation upon just a few passing comments. To me, it would have been more intellectually honest for the law to have admitted that a few comments were not enough to build a reliable model of how Terri Schiavo’s mind would work in an extremely important and complex situation. So, maybe we have to allow the Judge to step in and build a more general “decision model”, one that considers what we do know about Terri Schavio’s statements and expressed beliefs, but that also allows consideration of what is currently at stake. In such a process, I think it would be legitimate to ask, just how would pulling the plug affect other people. In this situation, it obviously affected the parents quite negatively. (It also hurt George W. Bush and Tom DeLay and all the Roman Catholic toadies, but their cynical interests disqualify them from ANY consideration whatsoever.)
The Schindlers were obviously locked into a typical parental body philosophy. Every human being presents both a body and a mind to others. Some people are more affected by our bodies and some people latch on more to our minds (I personally am more of a mind person, or try to be). Ms. Schiavo’s parents appeared to tip more towards the body side (which parents naturally tend towards, given that they helped to create the body of their child). So, maybe the court should have been allowed to ask, is Terri still “alive” to the parents? (I would disqualify consideration of anyone outside of immediate family, especially Tom DeLay and all the wacko priests and pro-life nuts who cynically professed their eternal body-love for Ms. Schiavo). Perhaps Terri Schiavo would have wanted to have been kept alive if she could have known how her parents responded . . . . at least so long as they were alive and conscious.
Well, as far as I am concerned, Terri Schiavo died a long time ago. But I appreciate the fact that other people have other viewpoints on that, and I especially sympathize with the parents’ viewpoint. (Not that I condemn Michael Schiavo either; I believe that he honestly represented the Terri Schiavo that he knew – but in marriage, you never really know the dynamics of the relationship that your spouse has with her or his parents — believe me, I know that from bitter experience!). I’m troubled that the law did not allow this to be considered. Then again, I’m also troubled by the notion of spending gobs of taxpayer money keeping brain-dead people alive for their elderly parents, while leaving younger parents who don’t have health insurance unable to provide basic care for their children. Well, there’s no easy answer here. All I can say right now (in a spiritual fashion) is rest in peace, Ms. Schiavo, and may the scars heal amidst those who were close to you. And thanks for making us all think, however inadvertently, about many things in our nation that need thinking about.