Did We Learn Anything From Terri Schiavo?

Did we learn anything from the death of Terri Schiavo two years ago?

Chris Gacek looks back on the second anniversary of Terri Schiavo's death and argues that Congress was right to intervene in an effort to give Schiavo another chance at judicial review. 

Under Florida law, the case's central issue was what end of life decision Terri Schiavo have made if she were competent. A decision to end life-sustaining measures needed "clear and convincing" evidence that Terri would have preferred that option. This standard requires less than the criminal law's "beyond a reasonable doubt" standard, but demands more than the evidentiary "preponderance" standard generally applied in civil cases.   . . . .

Terri's injury occurred in February 1990, but the probate court's sole hearing convened by Judge George Greer to gather evidence about her end-of-life wishes occurred almost ten years later. In that hearing, numerous witnesses described long-past events and provided speculative reasons to support contentions that Terri would have either wanted her life maintained or ended. The testimony was divergent and contradictory.

Notre Dame law professor O. Carter Snead argues powerfully that the Florida courts "abandoned" their "clear and convincing" standard, thus making it impossible "to have any confidence that Mrs. Schiavo's actual intentions were honored." Snead says further that Judge Greer applied the standard "in an unrigorous and unreliable manner " while relying on evidence that constituted "a veritable parade of every species of presumptively unreliable statement long rejected by courts across the nation called upon to adjudicate end of life disputes."

It is difficult to maintain that Judge Greer correctly applied the clear and convincing standard, and the appellate court's review can only be described as cursory. Realizing that decisive legal errors remained uncorrected, the Congress attempted to obtain an expeditious federal court review. That action represented the kind of fail-safe protection liberals usually favor--a court critique. But not this time.

Presidential candidate Mitt Romney recently reiterated the "accepted wisdom," stating that the case would have been better left to the courts. Romney seemed to be implying that Congress tried to legislate the case's outcome. Not true: Congress merely sought an emergency review in the courts. Legal scholar, Michael Paulsen, described the congressional enactment's function as being "very similar to what the federal habeas statute does."

Unfortunately, in the great rush of events, the federal courts misapplied the standard for granting temporary injunctions. Typically, the "likelihood of success on the merits" is balanced with the severity of any "irreparable injury" resulting from the injunction's denial. As Paulsen observed, "As irreparable injuries go, death is a pretty absolute and irrevocable one."

There would have been no harm in letting Terri Schiavo live until the legal matters were thoroughly analyzed. Instead of deferring to the "irreparable injury" that would befall Terri and recognizing the possibility that not all of the case's complex issues had been fully considered, the federal courts found there was little likelihood of success and therefore did not stay Judge Greer's order.

Sadly, Terri Schiavo's death showed America that the laws and institutions meant to protect the disabled are much weaker than those protecting felons. If our governments, both state and federal, are going to issue orders putting innocent, disabled persons to death, they should be afforded at least as much protection and judicial review as a convicted murderer would receive. Potential reforms could include using the "beyond a reasonable doubt" standard to judge end of life claims, having juries assess disputed factual claims, and/or instituting processes for review akin to habeas corpus.

It is one of Congress's traditional functions to spell out the scope of jurisdiction of the federal courts.  Under current constitutional law, the protections of the Fourteenth Amendment apply to deprivation of life, liberty or property by any state.  Based on existing constitutional law, I agree that Congress did not overstep its bounds in providing another chance for substantive review. 

What was shocking was that, after having been given jurisdiction to freshly review Terri Schiavo's case, federal courts allowed Schiavo's dehydration death to go forward on the basis of a much flimsier record than would have been required to condemn a guilty man to death.  I can think of few things crueler than to force a mother and father to watch their daughter dehydrated to death -- but that is what happened here.

Emotions are strong on each side when it comes to end-of-life decisions.  Some are predisposed to pulling the plug at the first sign of serious trouble.  Others like me don't give up so easily and believe in honoring every spark of human life.

For yourself, there is but one solution:  Prepare a written directive in advance that makes your preferences crystal clear.

Comments

[jeff]

"here would have been no harm in letting Terri Schiavo live until the legal matters were thoroughly analyzed." I guess the time from 1998 when Michael Schiavo petitioned the court to March 18, 2005 wasn't long enough for legal matters to be analyzed. Not to mention that she was in a persistent vegetative state since Feb.25 1990. Well not according to Dr. Frist.
Lets not also forget that the legislature of Florida and the US congress passed designed to prevent the removal of Terri's feeding tube. Both these laws were overturned by the Florida supreme court and the US supreme court.
Then or course we have Jeb Bush who sent state troopers, against a judges order, to seize Terri from her hospice and have her feeding tube re-inserted. The troopers stopped only after local sheriffs told them they would be enforcing the judges order. http://www.yuricareport.com/BushSecondTerm/PoliceShowdownOverSchiavoAverted.html

[kadamson]

Death by starvation and dehydration to a disabled American woman was legally won. This was not an end-of-life decision. This was a life ending decision.