Terry Schiavo

Patterico has been following the Terry Schiavo case since it made headlines in the fall of 2003.  As usual, his media bias slant is superb; he also has lots of facts and research supporting the "Let her live" side.

I hope to come out swinging soon enough, but just for the record - my current, essentially uninformed opinion, is that there will be difficult "right to die" cases, but this is not one of them.

Michael Schiavo, the guardian, has two glaring conflicts of interest - per the NRO, he will receive any unspent money in the malpractice award trust fund established to provide for Terri Schiavo's care until her death.  So, one might argue, he has perverse incentives to economize on testing and treatment.  In fact, according to Patterico's summary of Sen. Bill Frist's statement, she has never had a PET scan or MRI (a point questioned by the Health Law Prof.  Troubling.  [AHH!  Apparently she has had CAT scans, not the more sensitive PET or MRI scans].

So fighting to keep Terri alive we have her mother, her father, a brother and a sister; her guardian seems to be the driver behind ending her life.  Later, Congress may opine on apple pie, but right now, motherhood seems to be at issue.  Easy.

Now, what about the states rights, and federalism?  Surely proper conservatives should respect the legal process at the local level, and leave this to the Florida courts?

Uh huh.  And surely we should respect tradition and established precedent.  But wait!  These "right to die" laws are all very new - the 1990 Supreme Court "Cruzan" case would seem to be the starting point.  Might Florida have gotten their "right to die" law wrong?  I could be convinced.

Hence my starting point - the laws are new, her medical condition is ambiguous, her family, other than the husband, wants to keep her going - keep hope alive.

Now, I am delighted to see that the Senate Democrats did not engage in ritual seppuku over this, and, again per Patterico, we see that House Dems who came back to vote were split roughly 50-50 (OK, 47 in favor, 53 opposed). 

Mickey is insightful as ever on this; Dahlia Lithwick provides good legal background but is utterly unconvincing.  And we expect to savage, or at least respond to, this Mark Kleiman post sometime soon.

MORE:  Via Glenn, we see that both sides are getting aired at SISU; here is a "Keep hope alive" WSJ excerpt; a "wack the witch" "Respect my privacy" post; hope; privacy.

And possible court documents, from Patterico - [ignore] his link, with the disclaimer, [and go here].

UPDATE:  Ann Althouse on the federalism issue; the NRO editors support the current Congressional action; and interesting background at the Orlando Sentinel.

Prof. Bainbridge has an excellent post grappling with the federalism issue; lots of links and ideas at Carpe Bonum; Eugene Volokh cites a chap trouncing the federalist case, this new bill, and everyone who said "Terri" or "bill" today.  Hard luck for fans of Giant baseball.

Comments

[Carl F]

I haven't followed the Schiavo case very closely, but I must say that Congress has only delayed the inevitable. The Bible and the law of the land both support Terry Schiavo's husband in this matter. Unless he divorces her, his authority over his spouse is paramount.

Having said that, I think he should've been able to work something out with the family without all this mess. I also believe that those who believe Schiavo's spirit remains with the body should be calling for Mr. Schiavo to divorce his wife, mixed messages be damned. In any event, I don't believe there is anything Congress could do to change the outcome for Terry Schiavo except create new legislation to weaken the Institution of Marriage.

One more point regarding the unfortunate innuendo that Mr. Schiavo caused his wife to be in this state. God thought it important enough to number amongst his founding commandments to the Israelites a law against bearing false witness against others.

[TM]

One more point regarding the unfortunate innuendo that Mr. Schiavo caused his wife to be in this state.

Now I'm puzzled. I don't think anyone is alleging that he caused the medical situation that has led to this. As to pointing out the obvious (obvious to everyone except Times readers) - the guy has conflicts.

[Paul Zrimsek]

What the devil has the newness of the Florida law got to do with our centuries-old tradition and established precedent that says that "getting the law wrong" is not, by itself, cause for Federal action?

[Appalled Moderate]

Patterico's link is dead.

Matter of curiosity -- why does anybody think the Feds are going to rule any differently than the Florida court?

[Jim Travis]

Regards your comments about the misleading AP headlines on the vote in the House. That headline about the GOP failure was on Compuserv most of last night as I was checking for updates as to the vote. Misleading is apparently more important than being accurate.

[Carl F]

In response to:

"Now I'm puzzled. I don't think anyone is alleging that he caused the medical situation that has led to this."

In addition to Bobby Schindler's, Terry Schiavo's brother, comments during an appearance on one of the Fox News prime-time shows, there is a growing allegation that Michael Schiavo was somehow responsible for Terry's condition. While I certainly don't rule that out, such accusations are far from proven or even substantiated at this point. For example:

A blind eye?

[ed]

Hmmm.

"Matter of curiosity -- why does anybody think the Feds are going to rule any differently than the Florida court?"

Because, to my knowledge, there hasn't been a comprehensive review of all the facts. Instead this has been largely decided in Judge Greer's courtroom. What appeals that have been made have been refused on procedural grounds, without any real review of the underlying facts.

I.e Judge Greer determined that Terri Schaivo is suffering from PVS and that she wanted to die. And that is evidently good enough for every single judge in Florida.

What I want is for Terri to get at *least* the same level of protection afforded a convicted murderer. A review of the entire case, top to bottom, in a federal court should be the absolute minimum. It doesn't have to be much, just a few wierd things cleared up. Like why hasn't she been given an MRI/PET scan? Why hasn't there been any attempt at rehabilitation or therapy?

Etc etc etc.

[Crank]

It's certainly interesting to see the Right pulling out the same stops to save the innocent as the Left does to save the guilty. But I'm not all that convinced that there is is any way to defend Congress' and the President's actions on federalist principles.

[TexasToast]

Tom

There is hardly a case when a spouse doesn't have "conflicts". There is a horrible personal tragedy for everyone involved and it sickens me that it has become a political "article of faith".

The parents can't accept that their daughter is gone and they have powerful friends. Its our Dreyfus case. Where is Emile Zola when we need him?

[Appalled Moderate]

Here is the explanation of the legal effect of the Terry Schiavo bill, by the lawyers who are working to get the feeding tube reinserted. The crux of this is that, unless the lawyers can get the Court to rule that the entire fact-finding process in the Florida Court was flawed, there will be no change in the result. And any decision will be based -- as with Florida decisions -- on a reading of Florida law, unless they can get the judge to buy that there were 14th Amendment Violations. And, if the Court had been able to do this in the first place, there would have been no need for this bill.

So the question remains, what are really the chances the Federal courts will reverse the state? I really would like to know.

[TM]

I'm not all that convinced that there is is any way to defend Congress' and the President's actions on federalist principles.

Well, for myself, I can't see how one could. I guess the only defense would be analogous to the (deeply unsatisfying) equivalent of activist creep in the judicial decision-making process - if only liberals federalize every case that disappoints them at the state level, conservatives will lose lots of otherwise winnable cases.

Does Fed involvement set a bad precedent? Yes, although the facts are so odd, maybe not a significant one.

Does it make Reps look unprincipled? Well, since someone's life is at stake, various principles need to be balanced.

As to whether she might win in a Federal court? Who knows? And if she does not, then we descend into maelstrom.

And a BOld Aside - since Dems currently appear to be locked out of the White Hosie and Senate, they will become the new Federalists, insisting at every moment of convenience that state law is paramount. Is there *any* point to capturing all their rhetoric today, with the aim of replaying it the next time they are insisting that some issue be moved to Federal courts? IMHO, no - they will just declare "bygones", and move on.

There is hardly a case when a spouse doesn't have "conflicts".

Conflicts this stark?

The parents can't accept that their daughter is gone...

Why should they? Or why not say, the husband can't accept that his wife is *not* gone. What is the harm in letting her live?

If I were a concerned family member, I would plant evidence that Terri S. had committed a heinous capital crime in 1989, and try to get her sentenced to death. Then, she would be sure to be kept alive indefinitely.

[Tollhouse]

"Through the assistance of Mrs. Schiavo's treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans."

How exactly does that refute the MRI/PET thing. It's more then probably that this is a reference to the CAT scans.

[Joe Mealyus]

Texas Toast: "The parents can't accept that their daughter is gone and they have powerful friends. Its our Dreyfus case."

It's your *Dreyfus case*? Man, the orgy of self-criticism on the left never lets up.

[Joe Mealyus]

Carl F: "The Bible and the law of the land both support Terry Schiavo's husband in this matter. Unless he divorces her, his authority over his spouse is paramount."

Not since the whole "the wishes of Elian's father are paramount" thing has there been a more transparently insincere but-oh-so-earnest proclamation of principle on the left as the whole "Michael Schiavo is and should be her guardian" thing.

JOM: "If I were a concerned family member, I would plant evidence that Terri S. had committed a heinous capital crime in 1989, and try to get her sentenced to death."

Perhaps it would be easier just to get Michael Schiavo transferred into one of the undesirable classes. Although maybe this would be at best a wash, given that Terry Schiavo is in what seems to be the most undesirable class of all.

[Joe Mealyus]

Hentoff discusses the "was she beaten" angle here:

http://www.villagevoice.com/news/0347,hentoff,48738,6.html

And discusses the Nazi parallels here:

http://www.villagevoice.com/news/0348,hentoff,48917,6.html

And discusses the slippery slope here:

http://www.villagevoice.com/news/0349,hentoff,49123,6.html

And this one is entitled "A Woman's Life Versus an Inept Press."

http://www.villagevoice.com/news/0346,hentoff,48502,6.html

[Ben Sparks]

What is an MRI/PET supposed to show that the CAT scans don't? Most of her cerbral cortex is gone - she's never going to recover so any tests at this point are useless.

[TM]

It's more then probably that this is a reference to the CAT scans.

OK. And to think I once knew the difference.

[Christopher Rake]

What is an MRI/PET supposed to show that the CAT scans don't? Most of her cerbral cortex is gone - she's never going to recover so any tests at this point are useless.

The notion that Terri's cerebral cortex "is gone" is based largely on the CAT scan. Authors including Fr. Robert Johanssen at NRO have quoted neurologists as saying this probably cannot be determined by a CAT scan. Evidently Michael Schiavo has prevented any MRI from being taken:

Terri’s diagnosis was arrived at without the benefit of testing that most neurologists would consider standard for diagnosing PVS. One such test is MRI (Magnetic Resonance Imaging). MRI is widely used today, even for ailments as simple as knee injuries — but Terri has never had one. Michael has repeatedly refused to consent to one. The neurologists I have spoken to have reacted with shock upon learning this fact...

It's been frustrating to watch the news coverage the last few days; from FOX to CNN to the legacy networks, a number of anchors and pundits are stating that there's no hope for Terri because "her cerebral cortex is liquified" as shown by a CAT scan. TV producers at least should be up to speed enough to know this is one of the disputed points.

I also don't see where HealthLawProfBlog says an MRI was taken--the court order quoted refers to "high quality brain scans," which could easily refer to a CAT scan as noted above.

[Patterico]

What Tollhouse said. CT scans have been done, not MRI or PET scans, which are apparently more sensitive. I've had an MRI, and nobody has tried to kill me on the basis that I am brain-dead -- as far as I know . . .

So I don't think that there has been any refutation of Frist's statement.

Thanks for the links.

My link on the affidavits is now dead, but the affidavits are now linked elsewhere. Many are collected here:

http://www.zimp.org/stuff/

[TM]

I've had an MRI, and nobody has tried to kill me on the basis that I am brain-dead -- as far as I know . . .

The day is young... And I am getting hammered on my own blog here, so I may have to move in with you.

I am going to put in a note about the CAT / PET scans.

[Patrick R. Sullivan]

In the motion filed with the Federal Court in Florida the arguments are based on (1)the 'free exercise' clause of the 1st Amendment:

Judge Greer has denied her the right to receive the sacrament of Extreme Unction, and apparently has allowed the husband to plan to cremate her remains. Also, that the Catholic Church's official position is that patients in a permanent vegetative state are required to try to remain alive by taking nutrition.

(2) Both the Due Process and Equal Protection Clauses of the 14th Amendment. Due Process, because she wasn't really represented in court, but was only represented by her husband's lawyer (who was paid with money gained in the malpractice settlement) and their interests (life v death) would be in conflict.

Equal Protection, seemingly that as a disabled person she's being denied what she needs to remain alive.

There is also an argument based on a Federal statute regarding persons living in institutions for the disabled. Though no specific claim under ADA.

[Carl F]

In response to:

"Not since the whole "the wishes of Elian's father are paramount" thing has there been a more transparently insincere but-oh-so-earnest proclamation of principle on the left as the whole "Michael Schiavo is and should be her guardian" thing."

There is no comparison between the two cases. Though you correctly identify me as one who is on the left, you've misjudged my position on this issue. Michael Schiavo is her husband, and until that changes, there is no possible way around his wishes without changing current law. Now, if we are talking about challenging his status as her husband based on common law separation or other legal means, then we have a chance; but I don't know of any attempts to do that.

Do I think Terry Schiavo is alive? Perhaps. Do I think she should have her feeding tube removed? Hell no! Do I think Michael Schiavo could be a careless husband? Certainly. Do I think there is any possible way that ANY court could rule against his wishes while he remains married to Terry Schiavo? Absolutely not.

By the way, I did not support Elian's father's rights. I'm not a lawyer, but it seemed to me at the time that Elian's father was not an American citizen and Elian was a political refugee. I didn't think we in America shipped political refugees back to their nation of origin.

[Joe Mealyus]

Re: Carl F - I was making a general point (or parallel), and don't have strong opinions on the medical issues myself (though it seems that what information we have is suspect).

"Michael Schiavo is her husband, and until that changes, there is no possible way around his wishes without changing current law."

I find this bizarre. There are never similar cases where judge overturns the "husband's" guardianship and grants it to the parents? Surely there is something you can do to lose guardianship - move away, become a meth addict, start a blog - surely the judge has some discretion.

For me, intuition says that Michael Schiavo is far past that line - I have always believed (a la Nat Hentoff) that due process (/equal protection, /civil liberty, perhaps) requires representation by an advocate who is fully on their side. Apparently my intuition is not shared by the Florida legal system....

[Joe Mealyus]

JOM: "Mickey is insightful as ever on this; Dahlia Lithwick provides good legal background but is utterly unconvincing."

Dahlia: "Since 1990 ... there has been a constitutionally protected right to decline unwanted medical procedures."

Mickey: "Opposition to the Florida court's ruling seems like a legitimate protest against what appears to be a disingenuous machinery of euthanasia lawyers are busy establishing under the guise of a "right to die" (a right Terry Schiavo can only be said to be exercising by an extremely suspect chain of reasoning)."

Punditry's a riot with Slate vs. Slate.

[Patterico]

Arg. Now that other link is broken. Too much traffic.

Try this:

http://patterico.com/2005/03/21/2781/schiavo-affidavits-and-other-legal-documents/

I have also updated the link in the original 10/2003 post -- the one you are now telling people to ignore.

[TM]

I have also updated the link in the original 10/2003 post -- the one you are now telling people to ignore.

Are we having fun yet? Maybe someone could pull my feeding tube.

[doc]

1. Why can't she be manually fed or given liquids - why no food or liquids at all?
Taking the feeding tube out is one thing, denying all food and liquids by any means is murder isn't it?
2. Why did it take years before her 'husband' said she did not want to live this way?
3. Her friends said she was considering a divorce...certainly an indication that the relationship dynamics were in question,
4. Why can't guardianship be given to her parents so her 'husband' can go on with what he has already determined to be 'his own life'....another woman...2 children...engagement....common-law marriage (By the way, how did he file federal taxes?...joint or single and who was listed as the spouse and dependants?
5. What message is this giving to children today?
6. Could this issue possibly have contributed to the Minnesota school killings?
7. How do people with brain damage view this and what do they think? Are they next?
8. Why has the ADA been so silent? Why is no one calling them or why are they not on the news with statements?
9. What precedence will this now set…anyone who has a ‘loved one’ in ICU or on feeding or other life sustaining means could now say, ‘it was not the wish of this person to be this way, so pull the plug’…let me get the inheritance…let me stop the expenses…forget what the person wants…..whatever
10. Why can’t President Bush just ‘pardon her’?

[Zeeb]

Doc,your questions are exactly what I've been trying to find out about. If you get any answers, please post them! (Especially 1-4.)

[Zion]

There's absolutely no need for a MRI in the Schiavo case. I say that because the coarser CAT found that her cerebral cortex has dissolved. Her head is now mainly filled with cerebral fluid. An MRI looking for brain activity in fluid is pointless.