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Schiavo not to be overlooked

Observer Viewpoint | Thursday, April 7, 2005

Schiavo is more important than Roe v. Wade. In Roe, the Court cancelled prohibitions of abortion because the Court wrongly said the unborn child is not a person whose life is protected by the Fourteenth Amendment against deprivation by the state. The courts do not themselves order abortions. The mother makes that decision. In Schiavo the state itself ordered Terri’s execution. As Columbia law professor Michael Dorf commented on U.S. District Judge Whittemore’s ruling that there was no state action and therefore no Fourteenth amendment violation, “Judge Greer issued an order instructing Michael Schiavo to remove Terri’s feeding tube, even specifying the exact date and time … The state court did not merely stand idly by while permitting Michael to take such action; the court … mandated the disconnection. That ought to have counted as state action by a state actor.”

In Schiavo, the state itself executed an innocent person without the protections mandated for a defendant accused of capital murder or even of shoplifting. Judge Greer found that Terri was in a persistent vegetative state (PVS), in the face of contrary evidence, and that she would have wanted her tube removed. He relied on Michael’s testimony despite Michael’s conflicting statements and despite his conflict of interest that should have caused his removal as guardian. The Florida courts deferred robotically to Greer’s findings which they never would have done in a criminal death penalty case. Nor would a convicted murderer’s desire to die be considered by any court as a justification for sentencing him to death. The federal courts refused Terri the stay of execution which is automatic whenever a condemned murderer brings his case from the state courts to a federal court. Governor Bush also abdicated his responsibility by his deference to Judge Greer.

Schiavo is important for reasons beyond judicial abuse. Since the Bouvia case in 1986, the law allows a competent adult to starve and dehydrate himself to death. This is a form of suicide. If a person is incompetent, food and water may legally be withheld from him if there is evidence that he would have wanted that withholding or, in some states, if a court decides that the withholding would be in his best interest. Where the family and caregivers agree that food and water should be withdrawn, it is commonly done without court involvement. The intent to deprive a patient permanently of food and water is essentially an intent to kill. In moral terms it is murder. A benevolent motive does not change that reality.

John Paul II said, “the administration of water and food, even . . . by artificial means, always [is] a natural means of preserving life, not a medical act.” It is “morally obligatory” as long as it is achieving its goal of “providing nourishment to the patient and alleviation of his suffering.” Food and water do not aim to cure the patient’s underlying disease or the suffering caused by it. They sustain biological life, nourish the body, and prevent the suffering of hunger and thirst. “Death by starvation or dehydration,” said John Paul, “is . . . the only possible outcome . . . of their withdrawal.”

The only reason anyone heard of Schiavo was because Michael wanted to kill Terri and her parents and siblings did not. An impasse arising from such disagreement was inevitable in a legal regime which allows family members, who agree, to kill quietly an incompetent relative.

In Schiavo, the focus on PVS, including Governor Bush’s petition to intervene on the ground that Terri might not have been PVS, generated an inference that an indisputably PVS patient would want to end his life. Schiavo is precedent for courts to order the starvation of PVS patients in reliance on testimony of hostile, court-appointed guardians even against the wishes of family members who want to care for the patient. With diminished public attention, starvation will give way to the painless injection. And the triggering disability will drop below PVS.

In late 1938, the Knauer case, in which Hitler authorized euthanasia of a blind and deformed infant, was the “test case” that “was pivotal for the two killing programs of children and of adults.” (Robert Jay Lifton, The Nazi Doctors (1986), 51). Within months the grounds for killing included such defects as cleft palates and “badly modeled ears.” Those programs evolved into the Holocaust.

It is useless to criticize the Schiavo execution by the state of an innocent, disabled person without confronting the practice that allows family members to starve and dehydrate an incompetent patient to death when they agree that he would so desire. More basically, Schiavo is a predictable result of the acceptance of contraception in which man, of both sexes, assumes the role of arbiter of whether and when life shall begin. Inevitably that role will extend to that of arbiter of whether and when life shall end.

The Nazis, as arbiters of the value and termination of life, brought disaster to Germany. Maybe, because we are Americans, God will consent to be mocked indefinitely. But it might not be a good idea to count on it.

Professor Emeritus Rice is on the Law School faculty. His column appears every other Thursday. He can be contacted at [email protected]

The views expressed in this column are those of the author and not necessarily those of The Observer.