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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. Floridas 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 husbands 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artificial nutrition and hydration withdrawn.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
Schiavos 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hydration withdrawn absent their prior expressed wishes to the contrary.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 Floridas 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, Floridas governor tried to get state custody of Theresa
Schiavo and was reminded in court that the case had already been decided.
Floridas
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 patients 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 Courts 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 branchs 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 courts
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 Legislatures 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 courts 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
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