The Terri Schiavo case, or the question of who decides for whom...

Hello, after a long silence. Sorry for those of my readers who have been reading daily the blog expecting for an update.

Today, we are going to take a closer look to the case of Terri Schiavo, the lady over whom a guardianship case has become a question of the (improperly called so) “right to die” and rather, in my opinion a question of who decides for whom. And to put things straight from the start, this is not a question of “euthanasia”: it is a question of interruption of care for comatose patients.

Let us recall that after a potassium imbalance, Mrs Schiavo fell into a coma and what is described by courts as a “persistent vegetative state”.

The latest decision in the case was taken by the Federal District judge of Tampa (FL) who denied an emergency request by the parents that feeding tubes be reinserted in Mrs Schiavo, after an extraordinary bill was passed by the US Congress over the week-end (read lower down). The District judge allegedly “grilled” the attorneys of the parents of Mrs Schiavo (who were pushing for maintaining her in life) on the constitutionality of their case, according to CNN . He then denied “injunctive relief” to the parents on the grounds that they did not have any “substantial likelihood of success” in their case before federal jurisdictions. Read the whole story over here . You may also read the whole decision over here: http://news.findlaw.com/hdocs/docs/schiavo/32205fjord.pdf As you’ll notice, the judge primarily concentrated on verifying if the guarantees of due process had been respected for Mrs. Schiavo.

This last decision came after a long series of proceedings on removal of guardianship from the husband of Mrs Schiavo, Michael Schiavo. These proceedings were initiated by the parents of Mrs Schiavo (follow the timeline on the site of the foundation they established to fight for their daughter).

The fighting was bitter. In the end, however, Mr. Schiavo prevailed. It is worth quoting the way the 2nd District Court of Appeal justified its decision to allow the removal of the feeding from Mrs Schiavo (2nd Dist. Court of Appeals, 6 June 2003, Schindler v. Schiavo, 851.so.2d 182 (Fla, 2nd DCA, 2003):

From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith. But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband.

The text is quoted from an order of Judge Greer of the Circuit Court of Pinella (FL) who denied a motion to stay, and which is available in pdf form here, on the site of the parents.

There are two points that the judge misses, in my opinion: firstly, we do not have the least evidence of the will of Mrs Schiavo besides what her husband says. Secondly, the question is not that of Mrs Schiavo making her own decision; it is that of knowing who is going to decide for a patient who is incompetent and incapable of making her will known. Here, in my opinion, we shoud rather opt in favour of life, when there is a doubt as to the preferred course of action. Ancient Romans had a principle that they applied whenever they had to decide if a man was a person in the sense of the law, or a slave: in the case of doubts, they systematically privilegied the solution which set the person free (favor libertatis). We should doubtless adopt a similar solution in cases of the end of life.

Returning to the legal questions, here is the text of the Act passed by Congress this week-end in order to allow the parents of Mrs Schiavo to take action before federal courts.

AN ACT
For the relief of the parents of Theresa Marie Schiavo.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.
The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
SEC. 2. PROCEDURE.
Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior
State court determination and regardless of whether such a claim has previously
been raised, considered, or decided in State court proceedings. The District
Court shall entertain and determine the suit without any delay or abstention in
favor of State court proceedings, and regardless of whether remedies available
in the State courts have been exhausted.
SEC. 3. RELIEF.
After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.
Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.
SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.
Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.
SEC. 6.
NO EFFECT ON ASSISTING SUICIDE.
Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--

(1) to assisting suicide, or(2) a State law regarding assisting suicide.
SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.
Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.
SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.
Nothing in this Act shall affect the rights of any person under the Patient Self- Determination Act of 1990.
SEC. 9.
SENSE OF THE CONGRESS.
It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.

This Act was signed into law on the 21st March 2005 by President Bush. You may find the source text on Findlaw an excellent source of US law, over here: http://news.findlaw.com/hdocs/docs/schiavo/bill31905.html

The technique of the “personal” act was very criticized and somewhat ridiculed around the world. The technique might be criticized, since it means an interference from the legislative branch into the judicial in a country which was based on the principle of checks and balances. However, taking into account that “checks and balances” also means counter-balancing negative evolutions, and that much of the debate is made of symbols, in my opinion, any technique, however criticizable, may be used as long as it is for the Common Good.

Reactions in Europe have been rather supportive of... the husband. A continent where two countries have already legalized euthanasia, newspapers, according to their sensibilities have been either reticent to the intervention of Congress in a judicial case, or even supportive of “putting an end to the sufferings” of Mrs. Schiavo. As an example you may read the article of Eric Fottorino over here (French): La mort sans douceur . Now a word of caution for those who follow my links to Le Monde: the articles are available online free of charge for a limited period. Past that period, you will have to pay a fee to read those articles (or find the print edition somewhere).

As I am coming to an end of my update, I would like to point you to two sites where you may get additional information on the case of Mrs. Schiavo.

The first is the site of the parents of Mrs. Schiavo, the Schindler family. It is an excellent site, very well documented, generally up to date, and with a host of legal documents to be read in pdf format. A few links are broken, but may be accessed through other sites.

http://www.terrisfight.net/



The second site is that of Findlaw, which established a special page on the Schiavo case with a number of topics around the end of life and some legal commentaries. If you need updates on US law, I would advise readers around the world to start their researches on Findlaw.

http://news.findlaw.com/legalnews/lit/schiavo/index.html