How Liberalism Failed Terri Schiavo
From the April 4, 2005 issue: The question is not only what she would have wanted, but what we owe her.
Apr 4, 2005, Vol. 10, No. 27 • By ERIC COHEN
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. There was no living will, no advance directive, no formal instructions left by Terri Schiavo about what to do for her under such circumstances. Instead, the court relied entirely on Michael Schiavo's recollection of a few casual conversations, on a train and watching television, in which Terri supposedly said that she wouldn't want to live "if I ever have to be a burden to anybody" or be kept alive "on anything artificial." This was evidence of her possible wishes, to be sure. But in light of Michael Schiavo's own earlier statements and behavior--including his pledge to care for Terri for the rest of her days, his unwillingness to remove her feeding tube when the idea was first suggested, his shifting sense of moral obligation as he realized that Terri's condition was probably permanent, and his romantic involvement with multiple other women--these recollections hardly constituted "clear and convincing evidence" of Terri's wishes. In this case, the court had a legal obligation to "err on the side of life." Instead, it chose to allow Michael Schiavo to choose death.
Part of the problem was simply judicial incompetence--especially the court's decision, in direct violation of Florida law, to act as Terri Schiavo's guardian at key moments of the case rather than appoint an independent guardian to represent her interests, separate from the interests of her husband and her parents. But the problem went deeper than incompetence: It also had to do with ideology--with a set of assumptions about what makes life worth living and thus worth protecting. Procedural liberalism (discerning and respecting the prior wishes of the incompetent person; preserving life when such wishes are not clear) gave way to ideological liberalism (treating incompetence itself as reasonable grounds for assuming that life is not worth living). When the district court's decision to allow Michael Schiavo to remove the feeding tube was challenged, a Florida appeals court framed the question before it as follows:
[W]hether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. (emphasis added)