bitter sanity

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Wednesday, March 23, 2005

[posted by jaed at 5:07 PM]
Theresa Schiavo: Arguments in favor (II)
The first argument in favor of denying food and water to Theresa Schiavo:

Respect for Terri's wishes requires her death. The popular echo of this argument is the characterization of this situation as a "right to die" case, with the assumption that Theresa Schiavo would have wanted to die under these conditions. This assumption is based on a report by Michael Schiavo that his wife expressed these views to him some time before her injury.

There are a few problems with this testimony. It's hearsay. There are no witnesses to the conversation, although Michael Schiavo's brother and his wife have both testified that Theresa Schiavo made similar remarks to them. Michael has interests in this case adverse to those of his wife. He didn't come out with this until 1998. Another witness, a friend of Theresa Schiavo's, says they had a conversation during which she expressed disagreement with the idea of ending medical treatment in such cases.

(As a procedural tangent, I might note at this point that it's not likely the confession of a murderer would be admitted into evidence under these circumstances - many years after the fact, recounted by a person with adverse interests that might be in play, and supported by that person's relatives but refuted by other testimony that the accused had claimed innocence. I bring this up not because the comparison of a criminal with Theresa Schiavo is apt, but because the protections accorded an accused are there in order to protect that accused against violations of his or her constitution rights to life and liberty. Theresa Schiavo possesses those rights as well, and it seems reasonable that her rights should enjoy a similar level of legal protection.)

But there's a more significant problem with using Michael Schiavo's testimony as the basis for a determination that Theresa Schiavo wished food and water withheld from her should she become severely disabled. Let's say I were convinced beyond a doubt that this conversation took place and that Michael Schiavo is recounting it accurately. This is still not adequate evidence, in my opinion, to deprive Theresa Schiavo of her life. He describes a series of off-the-cuff remarks made after watching a movie, not a thought-out and carefully considered statement. The remarks he quotes were not specific, being more of the "I wouldn't want to be a burden" nature. They don't seem to have been specific either as to the extent of medical intervention she would and wouldn't want, or as to the degree and kind of disability she wouldn't want to live with. There's no reason to believe she understood or intended these remarks to be legally binding in the way a living will would be understood to be.

If she were being kept alive by a respirator, these non-specific remarks might be enough to conclude that she would want it turned off, assuming that we dismiss the contradictory evidence and take Michael Schiavo's recounting of this conversation as true and accurate; someone speaking in the 80s about "not wanting to be kept alive" probably would have been thinking in terms of artificial ventilation, surgery, and the like. However, there is a history of cultural change here that also needs to be examined.

In 1990, when Theresa Schiavo became disabled, "extraordinary medical intervention" was generally not considered to include food and water. Someone from whom extraordinary intervention was withheld would still, by societal and medical consensus, be provided with food (via a tube if necessary), water, shelter, and care intended to keep the person comfortable. (The law in Florida that classes a feeding tube on a par with such things as a respirator was only passed in 1999; before then, Florida law didn't allow denial of food and water in these circumstances.) In other words, at the time Theresa Schiavo made her remarks, there is no reason at all to think she was contemplating deprivation of food and water as a possible consequence. This would also be true if she had made a living will that stated simply that she didn't want to be kept alive "by extraordiny means" or similar wording. At the time we're talking about, food and water was not considered to fall into the category of extraordinary means.

There is no way, in her current condition, to reliably ascertain Theresa Schiavo's wishes concerning the provision of food and water. The report that she began crying uncontrollably when informed that the feeding tube was about to be withdrawn is indicative (not to mention horrifying in its possible implications), but her ability to understand and communicate, and the significance of her vocalizations, is in question. The evidence concerning her feelings before her disability is thin, inconclusive, and contradictory. She would surely have the right for her decision to be respected, if we could tell unambiguously what it was. But we can't tell.

(continued in Part III)

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