Surprisingly, I disagree. My thinking is very simple: because I take autonomy seriously, I admit that competent patients have the right to refuse treatment, even if this results in death. And I recognize that past expressions of preference can be authoritative in cases where the patient cannot express a preference (either because there can be no expression or because there isn't competence or preference). (I'm a little more nervous about decisionmaking by proxy, but ok for now.) In this case the best evidence is that she'd have wanted to refuse treatment; hence the treatment should be stopped. Also the precedent is terrifying. The state has trumped our best view of her choice.
Lines of attack:
(a) straightforward challenges to the evidence: argue that we don't know enough about her preferences.
(b) more sophisticated challenges: argue that her preferences were not fully informed by (i) the range of cases (she was thinking ventilator, not feeding tube); (ii) knowledge of what it's like to be in such-and-such a state.*
(c) challenges to the relevance of past preference: given the radical psychological change, it's not clear that this is the same agent, and perhaps there's room to argue that past-Terri's preferences don't have normative force when it comes to present-Terri. Present-Terri isn't the kind of entity that has future-directed preferences, and so...etc.
I think there are others, but food is calling.
*See for example Nagel's famous efforts on collective agency in "What is it like to be a frat?"
Well, I don't know that you're in quite the bad company you think you are. I think a lot of people (inc. me) are conflicted about this one, and most of them fall into the Harry Shearer group - it's truly tragic, and if it's OK, I'd rather have no part of it. Any anger I have is that it's been turned into yet another media spectacle, and, for the most part, I doubt the essential decency of the Big Names on either side of this issue.
That said, this is clearly a proxy fight for the right to die. If you think that you should have the right to terminate your life once it has reached a certain stage, then that she's not in pain or even conscious strikes me as a bit irrelevant. Presumably, with proper medication anyone could be turned into a husk of person once they reached the previously agreed upon stage where they would've terminated their lives. For all intents, they'd be dead for their own purpose and alive, in a fashion, for their relatives. That idea leaves me a bit uncomfortable.
If you believe in the right to die (which I tentatively do), I think the relevant question would seem to be, "Who's in the best position to guess what she would do if she were conscious?" That's a decision for the courts; if it ends up being decided in federal courts rather than state courts, I'm OK with that, but I'd rather not have a hardened rule on what the answers that person can give are.
My grandmother died of a stroke four years ago. Immediately after the stroke, she had regained some consciousness and while somewhat dazed, she could understand what my father and uncle were saying to her and respond. She joked, asking for coffee and a cigarette.
The stroke, however, destroyed her ability to swallow. The doctor explained that it was highly unlikely that she would ever regain this ability, given the severity of the stroke and her age. As kindly as possible, he explained that my father and uncle were facing two choices: a) the doctors could insert a feeding tube, and the insurance, and sale of all my grandmother's assets could provide her with another three months of life, at which point they would have to remove the tube or b) they could withhold the feeding tube, which would mean that she'd starve to death in about a week.
My grandmother had a living will and my dad was able to ask her wishes, and they chose to withhold the feeding tube and increase the morphine drip (death by starvation is otherwise very painful). It took about a week.
I mention all of this (and sorry, ogged & ala, for the long post) to point out a couple of things:
a) To me, it doesn't seem like either my grandmother committed suicide or my dad committed murder; and she had brain function that Terry Schiavo has not had for some time. She refused a medical treatment that (for her), would have pointlessly prolonged her life.
Whatever power the courts give Mr. Schiavo, it's certainly not a power to murder.
b) A large part of the decision, and what saddens me, was that it had to be made due to dollars and cents. She wouldn't have regained her ability to swallow in time, and there are lots of families who wouldn't have access to the kind of resources that the Schiavos did to keep Terri on her feeding tube that long. If this has become as some of the rhetoric is going, a matter of murder and her right to live, why is no one addressing the money issue? Where is the 'genuine outrage' over similar cases?
c) Can someone honestly explain to me how this is a right to life issue? I mean that question as non-snarkily as possible. One can respect life, and the elderly, and the mentally ill, and even be against euthansia and still sign a 'do not resusicitate' order for themselves. One can be, as my grandmother, father and uncle are, a devout Catholic and refuse a treatment knowing full well that it will end a life. How did this get taken up as a banner cause?
Who's in the best position to guess what she would do if she were conscious?
I don't mean to belabor this, but this question might be like the question "if my desk were conscious, what would its favorite color be?"-- that is, there's no fact of the matter, because the changes in Terri's head that are required to make her conscious are what would determine (not reveal) what her preferences are.
You see, Wolfson! You see! Fuckin' philosophy professors, trying to unmoor me from reality.
FL:
What's the operative difference btwn guessing her prior intent and the proxy decision-making you discussed? Are there situations where it would lead to differing results? Are there implications to the distinction that end up being important? (I hope none of that sounds snarky).
That's not quite the relevant counterfactual, though, FL: if Terri were (previously) conscious and (somehow) able to know that she would end up in a persistent vegetative statem, what would her preferences/decision be?
That doesn't sound like a strange counterfactual to consider, really, as it seems to be really what a living will is .
Giving other people the right to veto my medical decisions if they simply raise enough cash to pay for their choices seems like a bad precedent to set.
Mithras, you saw that point-- I think it was originally Yglesias's-- about Bush rushing back to DC to save Schiavo while forcing Medicaid cuts on governors?
FL: good point regarding how people may misunderestimate their quality of life, etc, after a horrible accident. That mistaken estimation, however, isn't a problem singular to the Schiavo case; and we still allow people to have living wills even with the possibility that they may be making their decision based on a misconception of their ability to adapt.
Unless you want to argue that Terri's preferences are irrelevant at this point, it seems that somehow we've got to try to let some kind of decision-by-proxy occur.
Fontana, your C in the first comment seems like the crux here. Which means there are two questions: legal and moral. Insofar as living wills are recognized, legally, I don't see how Alameida's position can carry the day. Alameida writes,
to the extent that her current "life" is a bad thing, it's bad from the point of view of her past self, who plausibly would regard it as pointless and undignified. But to the extent that she has no consciousness now, she is not suffering.
That's just a straightforward rejection of the principle behind a living will, no?
The moral question, then, is autonomy, as you say. Ought our present selves have control over our future selves, no matter what happens to those future selves? That's a tough call. In a pretty real sense, Terry Schiavo doesn't exist, and the continued existence of the lump of flesh that used to be her does comfort her parents. But, if the decision were mine, I don't think that would be enough. The living keep all sorts of promises even to the dead: that's what wills and deeds in perpetuity are all about, and they're an important part of our conscious lives: we manage our affairs with an eye toward the time after our deaths.
Given that, the question in each case will be empirical: what were the wishes of the patient, as best as we can tell? That's messy, and will be, until living wills become more common and more specific. But we shouldn't let it obscure the basic issues.
Labs, yes. I believe I saw it first on at Digby's. What about it?
On the suggestion "who would it hurt to ignore her wishes?", I can foresee a number of ailing people who, if they knew their instructions would be disregarded, would just shoot themselves rather than drag their spouses through this bullshit. Or, if they were the spouse, they would take A's advice literally and kill their beloved after the doctor tells them, "No, I don't care what she wanted, someone else is willing to pay us to keep her alive."
What exactly is a "living will"? Is it the same thing as an enduring power of attorney (which are in the UK and Australia)?
Is there a specific form to follow (like there is in Qld)? If you have a look at p9-10 of the form I've linked to, we get pretty specific on what you do and don't want. Is a "living will" not this specific?
OLS, in the States you have two documents that are usually separate: the durable medical power of attorney and the living will (or advance directive). The durable power gives another the right to make medical decisions on your behalf when you are incompetent. The living will expresses your wishes with regard to end-of-life treatment and, sometimes, gives another the legal power to enforce it.
This case is meat thrown to the religious right, but it's real implications are deeper, according to a lot of commenters; the ability of Congress to overrule state judiciaries whenever they please. Most likely the Supreme Court will declare their legislation to keep Schiavo alive unconstitutional. But the fundies will be appeased that they tried.
I think there are bigger issues here than comforting Schiavo's family. For one, it's not their decision, as the Florida courts have repeatedly decided. It is her spouse's decision to make, for her (although he gave over custody to the courts for complicated legal reasons, so now it is actually the court vs. the parents). But the parents still do not have custody of her. They just don't want to let go, and the Republicans have turned their pain into a tool for gaining political points. It's despicable, frankly.
And does the husband's comfort mean nothing? He took care of her for 8 years before trying to let her die. He seems to have genuinely loved her, and wants to carry out her last wishes. Can you imagine the pain of being prevented from doing that for your spouse by pressure groups praying on your lawn and saying hateful things about you in the press? No doubt he would prefer to drug her so that her death is less painful. I don't know if you are allowed to do so in Florida, actually. Because we are so afraid of dealing with a right to die in this society, we don't seem to have any laws ensuring such a death is as painless as possible, unless you're a family pet.
But in the end, I suspect she will be allowed to die, as she wished, no matter what sort of grandstanding the politicians and pressure groups do. Were it me and my husband, that's the outcome I would want also.
No doubt he would prefer to drug her so that her death is less painful. I don't know if you are allowed to do so in Florida, actually.
It is always appropriate to give pain medication.
However, in this case, it's irrelevant. Terri Schiavo's brain is mostly gone, withered away, replaced by cerebral spinal cord fluid. She can feel pain as well as the bottle of water sitting on my desk. The only thing that's going are her internal organs.
The one really unfortunate consequence to Congressional interference in this is that the federal government's intervention will provide a swift resolution to this dispute when, if there really were a God, this miserable, disgusting, only-in-Florida fight would go on just long enough, and just out of the reach of the public eye, to bankrupt all the sad, pathetic egomaniacs involved with an almost literal soccer match over the ultimate fate of a human being. There's almost no point in debating biomedical ethics with a guy so desperate to win an argument that he found a new girlfriend to help him with his legal bills.
There's almost no point in debating biomedical ethics with a guy so desperate to win an argument that he found a new girlfriend to help him with his legal bills.
On the legal issues, I can't understand why Diddy in 17 thinks that "federal government intervention will lead to swift resolution." The entire point of the Federal government intervention is to avoid the swift (two weeks maximum) resolution which was about to take place. Now, rather than this definetly being resolved within two weeks, the Schiavos have 30-days to file with the Federal Court for the Eastern District of Florida, though they will move for a preliminary injunction immediately, since the feeding is presently disconnected. I think it's extremely likely that the Federal Court will grant the injunction, a standard formula for injunctions is based on the severity of the harm if there is delay and the probability of winning on the merits. If the courts thinks there is some small chance of deciding for her parents later on, they will grant the injunction as soon as possible, since she is certain to die without it in two weeks.
This is a common misconception. Studies done during 80s and 90s with terminal cancer & AIDS patients showed that "starving" is not painful in people with terminal conditions. Thats why people stop eating at the end stages. As a matter of fact, performing tube placement for tube feeding is much more painful.
Am I the only fucking person in America who has had grandparents where we faced exactly this issue with the feeding tube? I am talking about three separate times, including twice in the past year. It is no more "starving her to death" than taking someone off a respirator is "suffocating her to death."
You have a different emotional reaction to a respirator than to a feeding tube because--I don't know why. Because it's bigger. That ought not to matter. Because it beeps more and makes more noise. That ought not to matter. Because healthy people routinely are on feeding tubes or drips and recover, whereas that's much less common with a respirator. That's irrelevant in a case where this is no hope of recovery. Because death happens almost immediately when a respirator is turned off, whereas when hydration stops it takes longer and you assume it's painful. It may be much less painful and drawn out than the alternative, and a lot of hospice workers say it's much less painful than you would intuit. In this case there is no indication that she can feel pain.
You cannot create a sane system for end-of-life decisions unless you recognize the difference between actively killing, and declining medical care. You cannot.
I am sorry this is a little heated. THe congressional debate has given me a pounding headache and I can't sleep
On the ethical issue, I'm going to assume that everyone commenting here thinks that there are some cases where autonomy trumps the life (living will cases, at least). So the question is what do we know in hard cases where we lack clear intent. The principle proposed by Alameida and others to "err on the side of life" has some intuitive appeal, but it's in danger of swallowing the rule. (I think the point I'm about to make is stolen from Hilzoy, not certain though) What if the living will provides for the future self being brain dead, but not in a PVS? What if it specifies removing ventilation, but not removing nutrition and hydration? If we err on the side of life there, we're at risk of ignoring the general intent behind a great number of living wills. The odd thing about this case from my perspective, besides the separation of powers issues, is how well the proceedings worked. The parents had numerous oppurtunities to appeal, the husband gave up his ability to make the determination himself and instead gave the state court the ability to use its discretion, and still we have the current mess. So despite what appears to me to be a remarkably well designed system in Florida for adjudicating end of life decisions, we still have this mess. I'm not really sure what improvements can be made to avoid this in the future, other than everyone having living wills. Maybe make filling out a living will part of some process that most people go through, like registering for a drivers license, though that strikes me absurd.
Whatever. Bush just signed the bill into law. Hooray for life! Or for the bottle of water on my desk. What do you think, Bottle of Water? *swish swish swish* It says hoorary for life, too!
Perhaps I would agree with you... except that the courts have all said that her husband is in the right, and they don't consider it murder either.
As far as I know, assisted suicide is out of the question. This is not assisted suicide. Michael Schiavo doesn't have the power to kill her; the courts have decided that it was her wish that if she were in this state that she be allowed to die. I don't know exactly what was in the court procedings, but if I did, perhaps I could explain this better. My guess is that an unconscious Teri Schiavo will not suffer too much as she dies. But I'm sure withdrawal of care does not mean that they cart her body out onto the roof of the hospital, disconnected from all machines, and let it waste away. My guess would be that this type of withdrawal of care would include the morphine that you request, and would be a lot less painful than some of the ways that other people die.
But it's those damn activist judges doing their thing again, right? Making decisions about the law. How crazy! I'll feel guilty as hell if something comes out in 5 years that definitively proves that she wanted to be kept alive, but I can reconcile the courts ruling with my soul, and my whole belief system.
One thing that really bugs me about this ordeal is the whole "those activist judges want to kill her!" schtick that the fringe keeps trotting out. It seems to be part of a broader movement to discredit and delegitimize the judiciary and the judicial process.
There seem to be (at least) two comment threads going on here. There are those who are debating the philo/politico/legal meaning of this issue and then there are those who have had personal experience with this type of situation, and their comments seem to have mainly been uncommented upon.
I would like to comment on Cala's question up in comment #4:
"If this has become as some of the rhetoric is going, a matter of murder and her right to live, why is no one addressing the money issue?"
Yeah, why is no one addressing the money issue? If Ms. Schiavo and her family were on Medicaid do you think you would have ever heard about this? No. There would be no question of a respirator, a feeding tube or the like.
Pehaps this is indicative of the state of our medical system and, more broadly, a general attempt of the well-to-do to avoid the inevitable--namely death and aging. How many more pills will come out this year so that you can prolong your life, remove your spider veins, and get rid of your wrinkles?
Who's in the best position to guess what she would do if she were conscious?
Since it would be unlikely that a living will could anticipate all the nasty things that can happen to a brain, there needs to be an answer to this question. And good thing there is: the courts. The judges who heard testimony from TS's intimates and familiarized themselves with expert medical literature were best able to determine what she would do if she were conscious. Yes, the greatest utility is preserved by keeping her alive—really, by MS simply divorcing TS and transfering legal guardianship rights to TS's parents, along with the ways you outline—but preserving utility is not the court's domain.
The point about the mechanism of her death is pretty useless. An aesthetic judgment. Like you, A, I would also like to die with as little pain as possible. Starvation seems intuitively much more unpleasant than other ways (though I think you understate the degree to which the pain of inanition is overstated). But, really, when it comes down to it, there's simply no difference as to whether her body is denied nutrition or some chemical is introduced that will interrupt her heart activity. There may be, again, greater utility for Michael to have a clean break of it.
In political terms, it's a strong semantic foothold to suggest that someone(s) is starving TS and she is right now hungry and thirsty and her pain will not be slaked, and that someone(s) is choosing that method to kill her among several. The fact of the matter is that inanition is less violent than some suicide interventions, but more importantly, is legally in line with TS's stated/interpreted wishes vis-a-vis her current state.
The right thing to happen is for the court to decide there is no constitutional violation when a state court enforces a person's wishes for their end-of-life care. If there is no chance that the party suing will win on the merits, then no injunction should issue.
It in the above comment should have been they, and rather than "surprised it hasn't been erased," the whole should read, "pleased they have been erased."
Whatever power the courts give Mr. Schiavo, it's certainly not a power to murder.
As far as I understand it, this is not the case. Not at all.
Mr. Schiavo is Terry's legal guardian, and he could very well have gone to court to get the feeding tube removed "because that would be what Terry would have wanted."
But he did not.
He asked the court to ascertain what it actually was what Terry would have wanted. The court decided Terry would have wanted to die (i.e. refuse the feeding tube). This decision was held up on all appeals.
The repubs aren't fighting Mr. Schiavo's decision as Terry's guardian, they are fighting Terry's decision as ascertained (over and over again) by the court.
1. Moral Arguments Favoring the End of Life Support
A thorough discussion of the very strong moral arguments in favor of honoring Terri Schiavo's end-of-life request to her husband has been completely missing in the media.
There has been virtually no coverage of the hypocrisy of the President, Tom Delay and his supporters. In 1999, Governor Bush signed the Texas Futile Care Law, which only last week allowed a Texas hospital to remove lfe support from a terminally ill 6-month old over his mother's objections.
3. Bill Frist, the Hippocratic Oath and "Witness Malpractice"
It is sadly ironic that Frist, Mr. Tort Reform himself, would commit the Congressional equivalent of "witness malpractice." Lacking expertise as a neurologist and having never examined the patient, he weighs in all the same. It's exactly the kind of bogus expert testimony in the courtroom that Frist routinely decries.
I guess I was wrong, but I thought the reason that this was kicked up to the federal level was that the parties had refused to accept that they had exhausted all options of conflict resolution available to them and had appealed to someone in Congress to take up their case. I did not, for a moment, think that Congress' solution to this would be to reset the judicial process. In retrospect, this means that Congressional interference is the BEST thing that could have happened to this case if we could ensure that no one would provide any outside financial support to the parties involved, only increased civil rights. By calling a "kicked ball" and pushing the clock, Congress has allowed these people to argue until they are literally blue in the face, and, as long as I don't have to watch or pay for it, that is the outcome I prefer. I'm sure Terri Schiavo will eventually rest in peace one way or the other.
And again, it was my understanding that Michael Schiavo filed for divorce, started dating a more well-to-do woman with kids, and has been spending her money on his legal battles ever since. If that is wrong, I apologize, and I will just start buying Carl Hiaasen novels to satisfy my weirdo Floridian jones.
PS -- it is obviously beyond ironic that "schiavo" is the Italian word for "slave." Someone must have pointed this out by now.
"Since she has no brain or consciousness, she can feel no pain, so let's keep her alive indefinitely. Because it would be murder to kill her by withdrawing heroic measures." Wow.
I have even a better idea. Warehouse hospitals could be built for all the future Terry Schiavos of the world, and maintenance specialists trained. This would be a growth industry which could be sited in some high-unemployment area.
Much of the comment here in this eminently-thoughtful, politically-moderate site seems to have been written in unawareness of either the legal or the medical history of the case. But then, any excuse is good enough for someone who wants to be able to say "a plague on both your houses" one more time.
Let's say I file a civil suit against Joe Blow Balloon Company in the state of Nebraska. Every state judge the case goes in front of, after reviewing the evidence anmd learning the intricacies of the case, rules against Joe Blow Balloon Co. JBBc decides this isn't fair, so they petition congress to change the jurisdiction of this case to the federal court system, and and Congress, knowing that if they do, each one of them will receive $150k from the clown lobby, decide that they will create a law moving this case to the federal court system, essentially voiding the decision of the courts and stepping outside the system of checks and balances.
Simply because a court does not rule in your favor does not mean you should petition Congress to change the nature of your case to a different court system. If so, what protections do courts have to maintain their rulings, if the Congress can simply move their case to a different jurisdiction?
And again, it was my understanding that Michael Schiavo filed for divorce, started dating a more well-to-do woman with kids, and has been spending her money on his legal battles ever since. If that is wrong, I apologize....
If Michael Schiavo divorced her, he'd not have the right to direct his wife's medical care.
I don't know if he is dating someone else. My understanding is that the judgment awarded to Terri has been paying the legal and the medical bills.
Michael Schiavo is not divorced. He is living with another woman. The money he "won" in his lawsuit was put in trust for Terri's care; even her staunchest supporters admit that there's only about $50,000 left. Everything else has gone for her care over a period of 15 years (according to the latest figures, it takes about $80,000 a year to keep her in the hospice where she is). Some of that is paid by Medicare.
If he were a greedy sob he could have taken the several million he has been offered to give up his fight. He has not.
Surprisingly, I disagree. My thinking is very simple: because I take autonomy seriously, I admit that competent patients have the right to refuse treatment, even if this results in death. And I recognize that past expressions of preference can be authoritative in cases where the patient cannot express a preference (either because there can be no expression or because there isn't competence or preference). (I'm a little more nervous about decisionmaking by proxy, but ok for now.) In this case the best evidence is that she'd have wanted to refuse treatment; hence the treatment should be stopped. Also the precedent is terrifying. The state has trumped our best view of her choice.
Lines of attack:
(a) straightforward challenges to the evidence: argue that we don't know enough about her preferences.
(b) more sophisticated challenges: argue that her preferences were not fully informed by (i) the range of cases (she was thinking ventilator, not feeding tube); (ii) knowledge of what it's like to be in such-and-such a state.*
(c) challenges to the relevance of past preference: given the radical psychological change, it's not clear that this is the same agent, and perhaps there's room to argue that past-Terri's preferences don't have normative force when it comes to present-Terri. Present-Terri isn't the kind of entity that has future-directed preferences, and so...etc.
I think there are others, but food is calling.
*See for example Nagel's famous efforts on collective agency in "What is it like to be a frat?"
Posted by FL | Link to this comment | 03-20-05 7:24 PM
Well, I don't know that you're in quite the bad company you think you are. I think a lot of people (inc. me) are conflicted about this one, and most of them fall into the Harry Shearer group - it's truly tragic, and if it's OK, I'd rather have no part of it. Any anger I have is that it's been turned into yet another media spectacle, and, for the most part, I doubt the essential decency of the Big Names on either side of this issue.
That said, this is clearly a proxy fight for the right to die. If you think that you should have the right to terminate your life once it has reached a certain stage, then that she's not in pain or even conscious strikes me as a bit irrelevant. Presumably, with proper medication anyone could be turned into a husk of person once they reached the previously agreed upon stage where they would've terminated their lives. For all intents, they'd be dead for their own purpose and alive, in a fashion, for their relatives. That idea leaves me a bit uncomfortable.
If you believe in the right to die (which I tentatively do), I think the relevant question would seem to be, "Who's in the best position to guess what she would do if she were conscious?" That's a decision for the courts; if it ends up being decided in federal courts rather than state courts, I'm OK with that, but I'd rather not have a hardened rule on what the answers that person can give are.
Posted by SomeCallMeTim | Link to this comment | 03-20-05 7:25 PM
My grandmother died of a stroke four years ago. Immediately after the stroke, she had regained some consciousness and while somewhat dazed, she could understand what my father and uncle were saying to her and respond. She joked, asking for coffee and a cigarette.
The stroke, however, destroyed her ability to swallow. The doctor explained that it was highly unlikely that she would ever regain this ability, given the severity of the stroke and her age. As kindly as possible, he explained that my father and uncle were facing two choices: a) the doctors could insert a feeding tube, and the insurance, and sale of all my grandmother's assets could provide her with another three months of life, at which point they would have to remove the tube or b) they could withhold the feeding tube, which would mean that she'd starve to death in about a week.
My grandmother had a living will and my dad was able to ask her wishes, and they chose to withhold the feeding tube and increase the morphine drip (death by starvation is otherwise very painful). It took about a week.
I mention all of this (and sorry, ogged & ala, for the long post) to point out a couple of things:
a) To me, it doesn't seem like either my grandmother committed suicide or my dad committed murder; and she had brain function that Terry Schiavo has not had for some time. She refused a medical treatment that (for her), would have pointlessly prolonged her life.
Whatever power the courts give Mr. Schiavo, it's certainly not a power to murder.
b) A large part of the decision, and what saddens me, was that it had to be made due to dollars and cents. She wouldn't have regained her ability to swallow in time, and there are lots of families who wouldn't have access to the kind of resources that the Schiavos did to keep Terri on her feeding tube that long. If this has become as some of the rhetoric is going, a matter of murder and her right to live, why is no one addressing the money issue? Where is the 'genuine outrage' over similar cases?
c) Can someone honestly explain to me how this is a right to life issue? I mean that question as non-snarkily as possible. One can respect life, and the elderly, and the mentally ill, and even be against euthansia and still sign a 'do not resusicitate' order for themselves. One can be, as my grandmother, father and uncle are, a devout Catholic and refuse a treatment knowing full well that it will end a life. How did this get taken up as a banner cause?
Posted by Cala | Link to this comment | 03-20-05 7:26 PM
Who's in the best position to guess what she would do if she were conscious?
I don't mean to belabor this, but this question might be like the question "if my desk were conscious, what would its favorite color be?"-- that is, there's no fact of the matter, because the changes in Terri's head that are required to make her conscious are what would determine (not reveal) what her preferences are.
Posted by FL | Link to this comment | 03-20-05 7:35 PM
You see, Wolfson! You see! Fuckin' philosophy professors, trying to unmoor me from reality.
FL:
What's the operative difference btwn guessing her prior intent and the proxy decision-making you discussed? Are there situations where it would lead to differing results? Are there implications to the distinction that end up being important? (I hope none of that sounds snarky).
Posted by SomeCallMeTim | Link to this comment | 03-20-05 7:45 PM
That's not quite the relevant counterfactual, though, FL: if Terri were (previously) conscious and (somehow) able to know that she would end up in a persistent vegetative statem, what would her preferences/decision be?
That doesn't sound like a strange counterfactual to consider, really, as it seems to be really what a living will is .
Posted by Cala | Link to this comment | 03-20-05 7:45 PM
Giving other people the right to veto my medical decisions if they simply raise enough cash to pay for their choices seems like a bad precedent to set.
Posted by Mithras | Link to this comment | 03-20-05 7:47 PM
[redacted]
Posted by [redacted] | Link to this comment | 03-20-05 8:07 PM
Mithras, you saw that point-- I think it was originally Yglesias's-- about Bush rushing back to DC to save Schiavo while forcing Medicaid cuts on governors?
Posted by FL | Link to this comment | 03-20-05 8:08 PM
FL: good point regarding how people may misunderestimate their quality of life, etc, after a horrible accident. That mistaken estimation, however, isn't a problem singular to the Schiavo case; and we still allow people to have living wills even with the possibility that they may be making their decision based on a misconception of their ability to adapt.
Unless you want to argue that Terri's preferences are irrelevant at this point, it seems that somehow we've got to try to let some kind of decision-by-proxy occur.
Posted by Cala | Link to this comment | 03-20-05 8:13 PM
Fontana, your C in the first comment seems like the crux here. Which means there are two questions: legal and moral. Insofar as living wills are recognized, legally, I don't see how Alameida's position can carry the day. Alameida writes,
That's just a straightforward rejection of the principle behind a living will, no?
The moral question, then, is autonomy, as you say. Ought our present selves have control over our future selves, no matter what happens to those future selves? That's a tough call. In a pretty real sense, Terry Schiavo doesn't exist, and the continued existence of the lump of flesh that used to be her does comfort her parents. But, if the decision were mine, I don't think that would be enough. The living keep all sorts of promises even to the dead: that's what wills and deeds in perpetuity are all about, and they're an important part of our conscious lives: we manage our affairs with an eye toward the time after our deaths.
Given that, the question in each case will be empirical: what were the wishes of the patient, as best as we can tell? That's messy, and will be, until living wills become more common and more specific. But we shouldn't let it obscure the basic issues.
Posted by ogged | Link to this comment | 03-20-05 8:29 PM
Labs, yes. I believe I saw it first on at Digby's. What about it?
On the suggestion "who would it hurt to ignore her wishes?", I can foresee a number of ailing people who, if they knew their instructions would be disregarded, would just shoot themselves rather than drag their spouses through this bullshit. Or, if they were the spouse, they would take A's advice literally and kill their beloved after the doctor tells them, "No, I don't care what she wanted, someone else is willing to pay us to keep her alive."
Posted by Mithras | Link to this comment | 03-20-05 8:33 PM
What exactly is a "living will"? Is it the same thing as an enduring power of attorney (which are in the UK and Australia)?
Is there a specific form to follow (like there is in Qld)? If you have a look at p9-10 of the form I've linked to, we get pretty specific on what you do and don't want. Is a "living will" not this specific?
- OLS
Posted by OLS | Link to this comment | 03-20-05 9:10 PM
OLS, in the States you have two documents that are usually separate: the durable medical power of attorney and the living will (or advance directive). The durable power gives another the right to make medical decisions on your behalf when you are incompetent. The living will expresses your wishes with regard to end-of-life treatment and, sometimes, gives another the legal power to enforce it.
Posted by Mithras | Link to this comment | 03-20-05 9:13 PM
This case is meat thrown to the religious right, but it's real implications are deeper, according to a lot of commenters; the ability of Congress to overrule state judiciaries whenever they please. Most likely the Supreme Court will declare their legislation to keep Schiavo alive unconstitutional. But the fundies will be appeased that they tried.
I think there are bigger issues here than comforting Schiavo's family. For one, it's not their decision, as the Florida courts have repeatedly decided. It is her spouse's decision to make, for her (although he gave over custody to the courts for complicated legal reasons, so now it is actually the court vs. the parents). But the parents still do not have custody of her. They just don't want to let go, and the Republicans have turned their pain into a tool for gaining political points. It's despicable, frankly.
And does the husband's comfort mean nothing? He took care of her for 8 years before trying to let her die. He seems to have genuinely loved her, and wants to carry out her last wishes. Can you imagine the pain of being prevented from doing that for your spouse by pressure groups praying on your lawn and saying hateful things about you in the press? No doubt he would prefer to drug her so that her death is less painful. I don't know if you are allowed to do so in Florida, actually. Because we are so afraid of dealing with a right to die in this society, we don't seem to have any laws ensuring such a death is as painless as possible, unless you're a family pet.
But in the end, I suspect she will be allowed to die, as she wished, no matter what sort of grandstanding the politicians and pressure groups do. Were it me and my husband, that's the outcome I would want also.
Posted by emjaybee | Link to this comment | 03-20-05 9:22 PM
No doubt he would prefer to drug her so that her death is less painful. I don't know if you are allowed to do so in Florida, actually.
It is always appropriate to give pain medication.
However, in this case, it's irrelevant. Terri Schiavo's brain is mostly gone, withered away, replaced by cerebral spinal cord fluid. She can feel pain as well as the bottle of water sitting on my desk. The only thing that's going are her internal organs.
Posted by Mithras | Link to this comment | 03-20-05 9:29 PM
The one really unfortunate consequence to Congressional interference in this is that the federal government's intervention will provide a swift resolution to this dispute when, if there really were a God, this miserable, disgusting, only-in-Florida fight would go on just long enough, and just out of the reach of the public eye, to bankrupt all the sad, pathetic egomaniacs involved with an almost literal soccer match over the ultimate fate of a human being. There's almost no point in debating biomedical ethics with a guy so desperate to win an argument that he found a new girlfriend to help him with his legal bills.
Posted by diddy | Link to this comment | 03-20-05 9:42 PM
There's almost no point in debating biomedical ethics with a guy so desperate to win an argument that he found a new girlfriend to help him with his legal bills.
To whom does this refer?
Posted by Mithras | Link to this comment | 03-20-05 9:47 PM
On the legal issues, I can't understand why Diddy in 17 thinks that "federal government intervention will lead to swift resolution." The entire point of the Federal government intervention is to avoid the swift (two weeks maximum) resolution which was about to take place. Now, rather than this definetly being resolved within two weeks, the Schiavos have 30-days to file with the Federal Court for the Eastern District of Florida, though they will move for a preliminary injunction immediately, since the feeding is presently disconnected. I think it's extremely likely that the Federal Court will grant the injunction, a standard formula for injunctions is based on the severity of the harm if there is delay and the probability of winning on the merits. If the courts thinks there is some small chance of deciding for her parents later on, they will grant the injunction as soon as possible, since she is certain to die without it in two weeks.
Posted by washerdreyer | Link to this comment | 03-20-05 11:14 PM
death by starvation is otherwise very painful
This is a common misconception. Studies done during 80s and 90s with terminal cancer & AIDS patients showed that "starving" is not painful in people with terminal conditions. Thats why people stop eating at the end stages. As a matter of fact, performing tube placement for tube feeding is much more painful.
Posted by nsf | Link to this comment | 03-20-05 11:31 PM
*See for example Nagel's famous efforts on collective agency in "What is it like to be a frat?"
Posted by ben wolfson | Link to this comment | 03-20-05 11:34 PM
Am I the only fucking person in America who has had grandparents where we faced exactly this issue with the feeding tube? I am talking about three separate times, including twice in the past year. It is no more "starving her to death" than taking someone off a respirator is "suffocating her to death."
You have a different emotional reaction to a respirator than to a feeding tube because--I don't know why. Because it's bigger. That ought not to matter. Because it beeps more and makes more noise. That ought not to matter. Because healthy people routinely are on feeding tubes or drips and recover, whereas that's much less common with a respirator. That's irrelevant in a case where this is no hope of recovery. Because death happens almost immediately when a respirator is turned off, whereas when hydration stops it takes longer and you assume it's painful. It may be much less painful and drawn out than the alternative, and a lot of hospice workers say it's much less painful than you would intuit. In this case there is no indication that she can feel pain.
You cannot create a sane system for end-of-life decisions unless you recognize the difference between actively killing, and declining medical care. You cannot.
I am sorry this is a little heated. THe congressional debate has given me a pounding headache and I can't sleep
Posted by Katherine | Link to this comment | 03-20-05 11:39 PM
On the ethical issue, I'm going to assume that everyone commenting here thinks that there are some cases where autonomy trumps the life (living will cases, at least). So the question is what do we know in hard cases where we lack clear intent. The principle proposed by Alameida and others to "err on the side of life" has some intuitive appeal, but it's in danger of swallowing the rule. (I think the point I'm about to make is stolen from Hilzoy, not certain though) What if the living will provides for the future self being brain dead, but not in a PVS? What if it specifies removing ventilation, but not removing nutrition and hydration? If we err on the side of life there, we're at risk of ignoring the general intent behind a great number of living wills. The odd thing about this case from my perspective, besides the separation of powers issues, is how well the proceedings worked. The parents had numerous oppurtunities to appeal, the husband gave up his ability to make the determination himself and instead gave the state court the ability to use its discretion, and still we have the current mess. So despite what appears to me to be a remarkably well designed system in Florida for adjudicating end of life decisions, we still have this mess. I'm not really sure what improvements can be made to avoid this in the future, other than everyone having living wills. Maybe make filling out a living will part of some process that most people go through, like registering for a drivers license, though that strikes me absurd.
Posted by washerdreyer | Link to this comment | 03-20-05 11:43 PM
Whatever. Bush just signed the bill into law. Hooray for life! Or for the bottle of water on my desk. What do you think, Bottle of Water? *swish swish swish* It says hoorary for life, too!
Posted by Mithras | Link to this comment | 03-21-05 12:08 AM
Alameida,
Perhaps I would agree with you... except that the courts have all said that her husband is in the right, and they don't consider it murder either.
As far as I know, assisted suicide is out of the question. This is not assisted suicide. Michael Schiavo doesn't have the power to kill her; the courts have decided that it was her wish that if she were in this state that she be allowed to die. I don't know exactly what was in the court procedings, but if I did, perhaps I could explain this better. My guess is that an unconscious Teri Schiavo will not suffer too much as she dies. But I'm sure withdrawal of care does not mean that they cart her body out onto the roof of the hospital, disconnected from all machines, and let it waste away. My guess would be that this type of withdrawal of care would include the morphine that you request, and would be a lot less painful than some of the ways that other people die.
I've posted on this a coupla times:
Here
and
here.
But it's those damn activist judges doing their thing again, right? Making decisions about the law. How crazy! I'll feel guilty as hell if something comes out in 5 years that definitively proves that she wanted to be kept alive, but I can reconcile the courts ruling with my soul, and my whole belief system.
After 5 hours on the road, it's time for bed.
Posted by tweedledopey | Link to this comment | 03-21-05 12:44 AM
One thing that really bugs me about this ordeal is the whole "those activist judges want to kill her!" schtick that the fringe keeps trotting out. It seems to be part of a broader movement to discredit and delegitimize the judiciary and the judicial process.
Posted by Mitch Mills | Link to this comment | 03-21-05 6:08 AM
There seem to be (at least) two comment threads going on here. There are those who are debating the philo/politico/legal meaning of this issue and then there are those who have had personal experience with this type of situation, and their comments seem to have mainly been uncommented upon.
I would like to comment on Cala's question up in comment #4:
"If this has become as some of the rhetoric is going, a matter of murder and her right to live, why is no one addressing the money issue?"
Yeah, why is no one addressing the money issue? If Ms. Schiavo and her family were on Medicaid do you think you would have ever heard about this? No. There would be no question of a respirator, a feeding tube or the like.
Pehaps this is indicative of the state of our medical system and, more broadly, a general attempt of the well-to-do to avoid the inevitable--namely death and aging. How many more pills will come out this year so that you can prolong your life, remove your spider veins, and get rid of your wrinkles?
Posted by chiefjason | Link to this comment | 03-21-05 6:24 AM
Who's in the best position to guess what she would do if she were conscious?
Since it would be unlikely that a living will could anticipate all the nasty things that can happen to a brain, there needs to be an answer to this question. And good thing there is: the courts. The judges who heard testimony from TS's intimates and familiarized themselves with expert medical literature were best able to determine what she would do if she were conscious. Yes, the greatest utility is preserved by keeping her alive—really, by MS simply divorcing TS and transfering legal guardianship rights to TS's parents, along with the ways you outline—but preserving utility is not the court's domain.
The point about the mechanism of her death is pretty useless. An aesthetic judgment. Like you, A, I would also like to die with as little pain as possible. Starvation seems intuitively much more unpleasant than other ways (though I think you understate the degree to which the pain of inanition is overstated). But, really, when it comes down to it, there's simply no difference as to whether her body is denied nutrition or some chemical is introduced that will interrupt her heart activity. There may be, again, greater utility for Michael to have a clean break of it.
In political terms, it's a strong semantic foothold to suggest that someone(s) is starving TS and she is right now hungry and thirsty and her pain will not be slaked, and that someone(s) is choosing that method to kill her among several. The fact of the matter is that inanition is less violent than some suicide interventions, but more importantly, is legally in line with TS's stated/interpreted wishes vis-a-vis her current state.
Posted by Kriston | Link to this comment | 03-21-05 7:23 AM
The right thing to happen now would be for the federal court to see this as a usurpation of authority, and refuse to hear the case.
Posted by tweedledopey | Link to this comment | 03-21-05 7:27 AM
The right thing to happen is for the court to decide there is no constitutional violation when a state court enforces a person's wishes for their end-of-life care. If there is no chance that the party suing will win on the merits, then no injunction should issue.
Posted by Mithras | Link to this comment | 03-21-05 7:51 AM
Is anyone else weirded out by the rape comment spam?
Posted by tweedledopey | Link to this comment | 03-21-05 8:11 AM
Yeah.
Posted by ben wolfson | Link to this comment | 03-21-05 8:16 AM
Yeah, I'm surprised it hasn't been erased yet, it's more than a little disturbing.
Posted by washerdreyer | Link to this comment | 03-21-05 8:19 AM
It in the above comment should have been they, and rather than "surprised it hasn't been erased," the whole should read, "pleased they have been erased."
Posted by washerdreyer | Link to this comment | 03-21-05 9:01 AM
Whatever power the courts give Mr. Schiavo, it's certainly not a power to murder.
As far as I understand it, this is not the case. Not at all.
Mr. Schiavo is Terry's legal guardian, and he could very well have gone to court to get the feeding tube removed "because that would be what Terry would have wanted."
But he did not.
He asked the court to ascertain what it actually was what Terry would have wanted. The court decided Terry would have wanted to die (i.e. refuse the feeding tube). This decision was held up on all appeals.
The repubs aren't fighting Mr. Schiavo's decision as Terry's guardian, they are fighting Terry's decision as ascertained (over and over again) by the court.
Posted by jasper emmering | Link to this comment | 03-21-05 9:23 AM
I'd like to add three points:
1. Moral Arguments Favoring the End of Life Support
A thorough discussion of the very strong moral arguments in favor of honoring Terri Schiavo's end-of-life request to her husband has been completely missing in the media.
For my take, see:
"Schiavo, Mill and the Culture of Living"
2. The 1999 Texas Futile Care Law
There has been virtually no coverage of the hypocrisy of the President, Tom Delay and his supporters. In 1999, Governor Bush signed the Texas Futile Care Law, which only last week allowed a Texas hospital to remove lfe support from a terminally ill 6-month old over his mother's objections.
For details, see Mark Kleiman's blog:
"Schiavo, Hudson and Nikolouzos"
3. Bill Frist, the Hippocratic Oath and "Witness Malpractice"
It is sadly ironic that Frist, Mr. Tort Reform himself, would commit the Congressional equivalent of "witness malpractice." Lacking expertise as a neurologist and having never examined the patient, he weighs in all the same. It's exactly the kind of bogus expert testimony in the courtroom that Frist routinely decries.
For more details, see:
"Bill Frist: Doctor Jekyll and Mr. Hide"
Posted by Jon | Link to this comment | 03-21-05 10:09 AM
I guess I was wrong, but I thought the reason that this was kicked up to the federal level was that the parties had refused to accept that they had exhausted all options of conflict resolution available to them and had appealed to someone in Congress to take up their case. I did not, for a moment, think that Congress' solution to this would be to reset the judicial process. In retrospect, this means that Congressional interference is the BEST thing that could have happened to this case if we could ensure that no one would provide any outside financial support to the parties involved, only increased civil rights. By calling a "kicked ball" and pushing the clock, Congress has allowed these people to argue until they are literally blue in the face, and, as long as I don't have to watch or pay for it, that is the outcome I prefer. I'm sure Terri Schiavo will eventually rest in peace one way or the other.
And again, it was my understanding that Michael Schiavo filed for divorce, started dating a more well-to-do woman with kids, and has been spending her money on his legal battles ever since. If that is wrong, I apologize, and I will just start buying Carl Hiaasen novels to satisfy my weirdo Floridian jones.
PS -- it is obviously beyond ironic that "schiavo" is the Italian word for "slave." Someone must have pointed this out by now.
Posted by diddy | Link to this comment | 03-21-05 10:21 AM
"Since she has no brain or consciousness, she can feel no pain, so let's keep her alive indefinitely. Because it would be murder to kill her by withdrawing heroic measures." Wow.
I have even a better idea. Warehouse hospitals could be built for all the future Terry Schiavos of the world, and maintenance specialists trained. This would be a growth industry which could be sited in some high-unemployment area.
Much of the comment here in this eminently-thoughtful, politically-moderate site seems to have been written in unawareness of either the legal or the medical history of the case. But then, any excuse is good enough for someone who wants to be able to say "a plague on both your houses" one more time.
Posted by John Emerson | Link to this comment | 03-21-05 10:22 AM
Yeah, that was a paraphrase, not a quote.
Posted by John Emerson | Link to this comment | 03-21-05 10:23 AM
"a plague on both your houses"
Who said this?
And what happened to Zizka? He was funnier.
Posted by ogged | Link to this comment | 03-21-05 10:25 AM
diddy diddy diddy,
Let's say I file a civil suit against Joe Blow Balloon Company in the state of Nebraska. Every state judge the case goes in front of, after reviewing the evidence anmd learning the intricacies of the case, rules against Joe Blow Balloon Co. JBBc decides this isn't fair, so they petition congress to change the jurisdiction of this case to the federal court system, and and Congress, knowing that if they do, each one of them will receive $150k from the clown lobby, decide that they will create a law moving this case to the federal court system, essentially voiding the decision of the courts and stepping outside the system of checks and balances.
Simply because a court does not rule in your favor does not mean you should petition Congress to change the nature of your case to a different court system. If so, what protections do courts have to maintain their rulings, if the Congress can simply move their case to a different jurisdiction?
Posted by tweedledopey | Link to this comment | 03-21-05 10:31 AM
And again, it was my understanding that Michael Schiavo filed for divorce, started dating a more well-to-do woman with kids, and has been spending her money on his legal battles ever since. If that is wrong, I apologize....
If Michael Schiavo divorced her, he'd not have the right to direct his wife's medical care.
I don't know if he is dating someone else. My understanding is that the judgment awarded to Terri has been paying the legal and the medical bills.
Posted by Mithras | Link to this comment | 03-21-05 11:28 AM
Michael Schiavo is not divorced. He is living with another woman. The money he "won" in his lawsuit was put in trust for Terri's care; even her staunchest supporters admit that there's only about $50,000 left. Everything else has gone for her care over a period of 15 years (according to the latest figures, it takes about $80,000 a year to keep her in the hospice where she is). Some of that is paid by Medicare.
If he were a greedy sob he could have taken the several million he has been offered to give up his fight. He has not.
Posted by Emma | Link to this comment | 03-21-05 12:24 PM
Zizka is burned out, depressed, and retired. So is Emerson, but he vents occasionally.
Posted by John Emerson | Link to this comment | 03-21-05 2:33 PM
had inadvertently set it earlier play blackjack Marty youd better change your clothes You cant go to Mambo Class .
Posted by Solomon Darin | Link to this comment | 01-25-06 1:07 AM