The Senescent Man

In February 1990, a sudden loss of oxygen to the brain left Theresa Marie Schiavo in a coma and eventually in a profoundly incapacitated state. Terri's husband, Michael Schiavo, took care of her, working alongside Terri's parents. He took her to numerous doctors; he pursued experimental treatments; he sought at least some modest restoration of her self-awareness. In November 1992, he testified at a malpractice hearing that he would care for Terri for the rest of her life, that he "wouldn't trade her for the world," that he was going to nursing school to become a better caregiver. He explicitly reaffirmed his marriage vow, "through sickness, in health."

But the lonely husband eventually began seeing other women. His frustration with his wife's lack of improvement seemed to grow. When Terri suffered a urinary tract infection in the summer of 1993 [12 years ago!], he decided to cease all treatment, believing that her time to die had come, that this was what Terri would have wanted. But Terri's caregivers refused to let her die, and Michael Schiavo relented--for the time being. Not all Terri's doctors, however, saw their medical obligation in the same way; one physician declared that Terri had basically been dead for years, and told Michael that he should remove her feeding tube. Michael responded that he "couldn't do that to Terri," that he could never leave his wife to die of dehydration. But at some point, his heart changed. He decided that it was time for her final exit and his new beginning. He decided that his own wishes--for children, for a new family, for new love unclouded by old obligations--were also her wishes. He decided that she had a right to die and that he had a right to let her die.

First, what would Terri Schiavo have wanted? Would she want to die rather than live in a profoundly incapacitated condition? Was Michael Schiavo's decision to remove her feeding tube an act of fidelity to his wife's prior wishes or an act of betrayal of the woman entrusted to his care? Second, what was Terri Schiavo's precise medical condition?
...

The right to have medical treatment withheld on one's behalf was codified in a string of legal cases over the last few decades. Ideally, the individual's wishes would be laid out in an advance directive or living will, describing in detail what kind of care a person would want under various conditions. This is procedural liberalism's ideal of autonomy in action: The caregiver simply executes the dependent person's prior orders, like a lawyer representing his client. But even persons without living wills still have a legal right to have their wishes respected, so long as those wishes can be discovered. Each state establishes specific criteria and procedures for adjudicating the incompetent individual's wishes in cases where these wishes are not clear, especially when there is a dispute between family members (as in the Schiavo case) or between the family and the doctors.

Under the law of Florida, where the Schiavo case was adjudicated, the patient's prior wishes must be demonstrated with "clear and convincing evidence"--the highest standard of legal certainty in civil cases. In cases where this standard of proof is not met, the court must "err on the side of life," on the assumption that most people, even those who are profoundly disabled, would choose life rather than death. In other words, the state is not supposed to judge the comparative worth of different human beings, but to protect the right of individuals to decide for themselves when their lives would still have meaning. And in cases where the individual's wishes are uncertain, the state of Florida is charged to remain neutral by not imposing death. This is the aim of procedural liberalism--and this is where things went terribly wrong in the Schiavo case.

With scant evidence, a Florida district court concluded that Terri Schiavo would clearly choose death over life in a profoundly incapacitated state.

// posted by The Senescent Man @ 3:31 PM