Hey, Wait Another Minute
March 24, 2005, 1:03 p.m. EST

The Terri Schiavo case is hard to write about, hard to think about. Those films are hard to look at. I see that face, maybe smiling, maybe not, and I am reminded of a young woman I knew as a child, lying on a couch, brain-damaged, apparently unresponsive, and deeply beloved...
I'm not going to presume to make a judgment as to whether Terri Schiavo's feeding tube should be reinserted, but her case raises serious ethical issues relating not only to the "right to die," but also to government and to the judiciary. Unfortunately, too many people are choosing sides in this debate without listening to all points of view.

So, to try to assist critical thinking about the Schiavo case, here's a point-by-point rebuttal to disability-rights lawyer Harriet McBryde Johnson's Slate column "Not Dead at All," which argues that Ms Schiavo should be kept alive and that Congress was right in acting to facilitate legal means to achieve that.

Due to copyright restrictions, I can't reprint her column here, so I'm afraid you'll have to keep two windows open to cross-reference.1

1. Ms Johnson claims that Ms Schiavo isn't terminally ill, but I'm not convinced that's true. A terminal illness is one doomed to end in death. Ms Schiavo's brain damage is in fact terminal—she will die if an outside source doesn't sustain her with food and water.
   
   That fact aside, Ms Johnson's assertion that "the question is whether she should be killed by starvation and dehydration" is entirely true, but that assertion does nothing to help answer that question; it merely restates the central dilemma of the case in blunt language meant to dispose the reader to Ms Johnson's point of view. That only distracts from the argument; it doesn't add to it.
2. Ms Johnson's contention that Ms Schiavo is not dependent on life support is highly questionable and depends on one's definition of "life support." While it's true that Ms Schiavo's lungs, kidneys, heart, and digestive system work fine, her brain does not. Her brain damage not only prevents her from eating and drinking on her own, but also it has destroyed her awareness that she must eat and drink to sustain her life. So Ms. Schiavo's feeding tube kept her alive through artificial means. Without it, she will die. That seems to qualify the feeding tube as life support.
3. If we deny that Ms Schiavo's feeding tube is "treatment," as Ms Johnson does, then we are also obligated to deny that respirators and blood pumps are treatment. Patients receive those types of life support to artificially compensate for a non-functioning part of their body, just as Ms Schiavo's feeding tube compensated for her brain's inability to realize that it needs to feed itself.
   
   Ms Johnson says that, "The question is who should make the decision [to refuse treatment] for her, and whether that substitute decision-maker should be authorized to kill her by starvation and dehydration." Again, she's restating the central debate of the case. What she doesn't mention is that the courts have repeatedly answered that question and found in favor of Ms Schiavo's husband.
4. While there may be a dispute as to whether Ms Schiavo is conscious, it's a stretch to call it a "genuine" dispute. Most medical experts and objective observers don't believe that she's conscious; those who disagree are those who desperately want her to be conscious.
   
   Ms Johnson makes a good argument that if Ms Schiavo is not conscious then she has no suffering to relieve by ending her life. But Ms Schiavo's suffering or lack thereof is not at issue here. What's at issue is whether Ms Schiavo wished not to be kept alive in a persistent vegetative state, regardless of suffering.
5. In this case, Ms Johnson is right that there is a genuine dispute about what Ms Schiavo's wishes were. But Ms Johnson's makes a faulty argument when she insists that necessitates Ms Schiavo's being kept alive. Ms Johnson asks us to recognize that, if Ms Schiavo is conscious, it's possible that she's decided that her state isn't as bad as she thought it would be, and that she's happy to live out her life in it. If we accept that might be the case, then we also have to accept that the opposite might be true: Ms Schiavo might have found her state to be worse than she ever imagined and might wish to end her life.
   
   Ms Johnson does craft a tempting argument when she asserts that Ms Schiavo can have no preference for death if she has no consciousness. But if we allow ourselves to believe that justifies keeping Ms Schiavo alive, we risk invalidating the entire concept of a living will. Imagine that I state, in writing, that I wish to die rather than to live in a persistent vegetative state. Then, when I end up in such a state, my family or doctors could keep me alive, against my wishes, arguing that because I'm no longer conscious I no longer have a preference and so it can't hurt to keep me alive, just in case.
   
   When an individual enters a state in which they can no longer make a decision for themselves, it is not the job of those who care for that person to do what they personally believe to be best. Instead they must strive to do what they honestly believe the stricken individual would have wanted.
6. Ms Johnson is correct. And Ms Schiavo and her family have had due process, including many court rulings and legislative votes extending over a period of 15 years.
7. Here Ms Johnson's point rests on considering Ms Schiavo to be disabled. I won't pretend to know the legal definitions of disability in federal or Florida law. However, while Ms Johnson is correct in claiming that "Florida law would not allow a husband to kill a nondisabled wife by starvation and dehydration," it could allow a husband to kill a wife who is disabled with non-functioning heart and lungs by ending artificial life support, if it was her wish. Ms Schiavo's case seems more similar to the latter than to the former.
8. I agree with Ms Johnson on this point. But does the need for federal review of case's like the Schiavo family's justify the US Congress passing hastily crafted legislation under the extortionary argument that a woman will die if the bill is not immediately approved?
9. Ms Johnson claims that we cannot reasonably assume that the Florida court decisions were not tainted by prejudice against disability. Not only is that untrue, the continuing viability of our legal system demands that it be untrue. We as a society accept the decisions of judges and juries under the fundamental assumption that they are acting without bias, or at the very least making all reasonable effort to act without bias. If we allow ourselves to assume—without evidence—that judicial decisions are tainted by prejudice, then no court ruling would ever have the moral authority to stand. The losing party could always declare bias—against disability, gender, race, religion, class, education, even personal odor. And there would be no reason to assume that any appeals process would alleviate the prejudice. The party discriminated against could always assume similar bias at a higher court, or the winning party might be subject to reverse discrimination.
   
   If Ms Johnson has evidence that the Schiavo case is tainted by judicial prejudice, she should present it and we should do everything possible to make sure that the case is heard fairly and that the judges involved are punished. If she has no evidence, she shouldn't make unfounded accusations.
10. Ms Johnson correctly characterizes the legislation passed by Congress, but I don't imagine that she's naive enough to believe that supporters of the legislation would not have passed a bill more specifically focused on keeping Ms Schiavo alive if they had legally viable means to do so. Let's not forget that Congress had fifteen years to act on this case, and they only chose to do so now at its final moments, when the attention of the country is focused on Ms Schiavo and the personal and political stakes are at their greatest.
    
    In a democracy, it's extremely dangerous to craft laws in the heat of the moment or to fit a specific case—let alone both at once, especially when supporters of legislation can threaten detractors with having Ms Schiavo's blood on their hands. A country of hundreds of millions of people can not afford to have their future mandated by impulse.
    
    The issue of whether or not their exists a "right to die"—and, if so, what the government's and courts' roles are in it—is important and complex. Too much so to allow us to rush to a decision while caught up in the powerful emotions surrounding the life of a stricken woman and her bereaved family.

1 Also, those of you who come to this site looking for the jokes might want to come back another time, sorry. Back

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