Reflections on Schiavo:
Are medicine, ethics, and law enough anymore?

By Gerald S. Schatz

What does the long, sad, bitter controversy concerning Theresa Schiavo now imply for medicine, medical ethics, law, patients, and caregivers? Neither her medical condition nor the siege litigation over whether her artificial hydration and nutrition should be discontinued had presented novel issues of medicine, bioethics, or law. Florida’s courts screened evidence for credibility and relevance concerning her neurological status, her wishes, her best interests, the fitness and conduct of her husband, Michael Schiavo, as her guardian, and how these several factors came together in determining whether her artificial nutrition and hydration could be ethically, legally discontinued.

In proceedings reviewed through multiple appeals, the courts concluded that she was in a persistent vegetative state with no reasonable medical hope of recovery. They sustained her husband’s guardianship and permitted him to have artificial nutrition and hydration withdrawn. The failure of legislative and executive branch challenges rested on conventional law. Even now, Schiavo presents nothing new in medicine, medical ethics, or law except this: An intimidating legislative and executive branch willingness to presume about the individual patient and the medicine, to decide upon the ethics, and to demand and steer subsequent proceedings seemingly indefinitely.

I do not disparage the view that persons in what the courts found to be Theresa Schiavo’s position should not have their artificial nutrition and hydration withdrawn absent their prior expressed wishes to the contrary. Nor do I disparage concern for Theresa Schiavo or for revisiting what the law should be. I do not know the medical or other legally relevant personal facts other than those that Florida’s courts, the only ostensibly neutral evaluators, found credibly inferable. So I am not qualified to say what the outcome should have been for Theresa Schiavo. I am concerned about how we decide.

My dismay is with the attempts to set constitutional law aside, and I worry about the implications for medical care. The wrenching ethical problems of caregivers in trying to decide what is right and medically appropriate for this patient, the great difficulties of courts in trying to ascertain what is believable and what is fair, and the subjection of all of this to prolonged and painful judicial review, which is how our society has set itself up to deal which such conflicts, would have seemed to be enough. Notwithstanding the law or the established medical facts, the Florida Legislature tried to disregard a case that had been pursued to legal finality and to invest the governor with judicial prerogatives but no criteria for decision. When that failed in the Florida Supreme Court and the U.S. Supreme Court refused review, the Congress sought to set aside the actions of the Florida courts. When that failed, Florida’s governor tried to get state custody of Theresa Schiavo and was reminded in court that the case had already been decided.

Florida’s Legislature and governor and Congress and the President showed that at least in a bioethics matter a settled judicial outcome not to their liking could incur yet further costs in time, litigation, and unhappiness. Many guardians, caregivers, hospitals, hospices, and house counsel may be especially wary in these matters henceforth, which is not all to the bad. But they are likely to be inappropriately wary, regardless of the ethics and the law, because they have seen legislative power applied with impunity in attempts to thwart the law. They may discourage or delay those ethical decisions that might trigger direct legislative or executive branch interference. We may have made our medical directives or otherwise credibly declared our medical preferences, and we may have our medical proxies, empowered by ourselves or by operation of law, and the courts may uphold our preferences and proxies through numerous reviews. But if our legislatures and executive branch officials dislike the diagnosis, prognosis, or likely outcome, then one possibility now vivid is a legislative and executive legal siege.

The Schiavo controversy was not the first such dispute. It happened in Virginia with the case of Hugh Finn, whose wife successfully fought off a legislative intrusion. That was an expensive fight, and Schiavo more so. It is easy enough to imagine the emotional burden on all parties. Add in the inchoate but terribly important burden on the patient’s own dignity. Through events not of their making, Hugh Finn and Theresa Schiavo had become symbols, or perhaps tokens, in lieu of personhood.

For these reasons, for me the most significant ethical statement arising from all this is the Florida Supreme Court opinion that declared the legislative override an unconstitutional violation of separation of powers. The Legislature had tried to overrule a final court decision and it had tried to vest judicial powers in the governor without standards for decision. The Florida Supreme Court’s decision was not about Theresa Schiavo, although surely it would affect her; it was about governing. That court ruled:

The continuing vitality of our system of separation of powers precludes the other two branches from nullifying the judicial branch’s final orders. If the Legislature with the assent of the Governor can do what was attempted here, the judicial branch would be subordinated to the final directive of the other branches. Also subordinated would be the rights of individuals, including the well-established privacy right to self-determination. No court judgment could ever be considered truly final and no constitutional right truly secure, because the precedent of this case would hold to the contrary. Vested rights could be stripped away based on popular clamor. The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost, especially their belief that our courts exist precisely to preserve the rights of individuals, even when doing so is contrary to popular will.

The trial court’s decision regarding Theresa Schiavo was made in accordance with the procedures and protections set forth by the judicial branch and in accordance with the statutes passed by the Legislature in effect at that time. That decision is final and the Legislature’s attempt to alter that final adjudication is unconstitutional as applied to Theresa Schiavo. Further, even if there had been no final judgment in this case, the Legislature provided the Governor constitutionally inadequate standards for the application of the legislative authority delegated in [the challenged law]. Because [the challenged law] runs afoul of . . . the Florida Constitution in both respects, we affirm the circuit court’s final summary judgment.

As noted, the U.S. Supreme Court declined to review that decision. Courts can make evidentiary, procedural, and legal mistakes. So there are appellate reviews. The law itself may be wrong. These are appropriate issues for public concern. The applicable law might need changing. There may be justification for correcting palpable injustice. Skirting constitutional principles and putting legislatures and governors in charge of bedside decisions is a dubious prospect. However motivated, it is not medicine, ethics, law, or law reform; it is deciding tragic, individual cases by clamor.

Gerald S. Schatz
Center for Ethics and
Humanities in the Life Sciences