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March 28, 2005

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Kirston Fortune, UT Law Communications, (512) 471.7330

Robertson: Schiavo case: It's about our laws, not emotions

By John Robertson
Published Monday, March 28, 2005, in The Austin American-Statesman Commentary section.
Reprinted with the author's permission.

The Terri Schiavo controversy has focused attention on the propriety of Congress' intervention and the drama of the federal courts' refusal to override state judges and order the brain-damaged woman's feeding tube reinserted. But lost in the debate is a more important question: Are our rules for deciding on behalf of incompetent patients flawed?

A closer look at the Florida law in the Schiavo case reveals no major problem in the standards or procedures for making such life-and-death decisions. Like most states, Florida allows treatment to be withheld from a mentally incompetent patient who has made a living will.

For the vast majority of people who haven't made such an advance directive, it allows a decision-maker designated by the patient or the law to determine by clear and convincing evidence "what the patient would have chosen." In the case of disputes, guardians are appointed and judicial review is available.

Texas has a law similar to that in Florida, signed by then-Gov. George W. Bush in 1999. In fact, the Texas law goes even further. It allows doctors who think that medical treatment is inappropriate to withhold it even when the patient, family or guardian want treatment to continue. It is safe to say that if the Schiavo facts had arisen in Texas, the same outcome would have occurred here.

So this dispute appears to be not over the legal standard for such difficult choices, but how it was applied in Florida. But there is no reason to think Florida's process wasn't fair. Based on testimony of Schiavo's husband, Michael, and three other witnesses, two of whom were related to Terri, the court found clear and convincing evidence that she would not have wanted to be kept alive by tube feeding or other technology.

To say that she has received less due process than a prisoner on death row, as her supporters have argued, is fanciful. Her interests have been represented by three different guardians, the parents' attorneys and several stages of review in the Florida courts.

Why, then, did the case become a cause celebre? At some point in 2001, attorneys for Terri Schiavo's parents began to raise the issue not only of what she would have chosen, but also whether she was, in fact, in a persistent vegetative state. Backed by misperceptions about the meaning of reflexive physical movements, they asserted that she was conscious and responsive and was being denied care that could help her.

Although unsupported by reputable medical opinion, this framing of the issue enabled right-to-life and disability rights groups to mobilize their supporters. When they lost in the Florida courts, they were able to persuade the Florida legislature and then Congress to intervene to overturn the state courts' considered findings in this case.

As the emotional dust aroused by the Schiavo case starts to settle, a few lessons stand out. One is a reminder of how important separation-of-powers principles are to individual rights and the rule of law. A legislature's role is to legislate, not take sides in an ongoing judicial battle when one party has lost in the courts.

The Florida legislature's attempt to overturn Florida court rulings with its 2003 "Terri's Law," allowing Gov. Jeb Bush to require reinsertion of the feeding tube, was a blatant violation of separation-of-powers principles and rightfully declared illegal by the courts. Thus chastened, the votes were not there for a second legislative attempt to override the courts in the case's final stages.

Congress' intervention also has turned out to be an embarrassment. The irony of conservatives running to the federal courts to override state judgments was glaring. The claim that "a life was at stake" does not explain why this case was more compelling than the lives at stake in Medicaid budget cuts or the limits on death-row access to the federal courts. Nor did liberals, searching for a way to show their commitment to human life, do themselves proud by supporting an "emergency" law that applied only to a single case without stronger evidence of state disregard of constitutional rights.

A second lesson is the importance of distinguishing medical facts from the symbolic messages attached to them. The claim that the Florida trial judge and Michael Schiavo were "starving" Terri by removing a feeding tube rouses strong emotion. But as the courts and most bioethicists have long recognized, there is no meaningful ethical distinction between medical technologies that provide respiration and those that provide nutrients. If one can be withheld on the basis of inferred or expressed wishes, there is no reason why the other should not as well.

The most important lesson of the case, however, is to remind us that we have fashioned a workable, well-thought out set of rules for making heart-wrenching decisions at the end of life. Those rules don't answer all questions, and they cannot prevent the relatively rare disputes that arise among family members from overflowing into the courts and the media. But the passions such disputes arouse should not lead us to undo a decision-making system that has worked well in the vast majority of cases.

Robertson heads the Vinson & Elkins Chair in Law at the University of Texas School of Law.

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