August 25, 2004,
Life and Death in Florida
Will courts kill Terri Schiavo?
Later this month, the Florida supreme court will decide whether Terri Schiavo lives or dies. Literally.
Terri's life has been tied up in court for years, ever since a debilitating injury 14 years ago left her cognitively disabled. The latest chapter of her saga began last year, after her husband, Michael Schiavo, won court approval to remove Terri's feeding tube an act that would have killed her.
Florida's legislature quickly passed "Terri's Law," empowering Gov. Jeb Bush to order the tube reinserted, which he did. But in May Florida Circuit Court Judge Douglas Baird overturned that law, putting Terri's life at risk again. The state appealed, but a Florida appellate court barred Terri's parents, Robert and Mary Schindler who have been trying to protect her for years from intervening in the court fight. Now they are just bystanders as the Florida supreme court decides whether their daughter's husband can kill her.
In 1990 Terri collapsed mysteriously, resulting in brain damage. Although she is disabled, and confined to a hospice, she is not in a coma. Florida law defines a vegetative state as "the absence of voluntary action or cognitive behavior" and "an inability to communicate or interact purposefully with the environment." But video clips filmed by her family demonstrate that Terri responds to visitors and events.
Neuropsychologist Alexander Gimon concluded that such activities "are completely inconsistent with a diagnosis of vegetative state." Jay Wolfson, appointed by the court as a guardian ad litem, concluded that she had a "distinct presence" and was responsive to her family.
Neurologist William Hammesfahr is equally emphatic: Terri "is alert and responsive to her environment. She responds to specific people best. She tries to please others by doing activities for which she gets verbal praise."
According to Michael, Terri said she wanted "no tubes," but others in her family believe she would have wanted the opposite. Besides, who among us would want to die based on an off-hand comment made years before?
Moreover, Michael conveniently didn't note Terri's alleged sentiments when filing a malpractice lawsuit and requesting money for rehabilitative care for her. Furthermore, a former girlfriend says that he admitted that he and Terri never talked about the issue.
The fact that the married Michael had a girlfriend doesn't help his case, either.
There are also the Schindler family's claims about his violent nature and questions about the circumstances of her collapse. There are his two children with his current live-in. There is his failure to fund rehabilitative care that some doctors say could be effective, and his reported comments on how he planned to spend the almost $1.6 million legal judgment for Terri.
And there is his extraordinary question to nurse Carla Iyer, cited in a deposition last year: "Can't you do anything to accelerate her death?" Iyer, with no apparent stake in the case, says Michael also asked, "When is that bitch going to die?"
Raising additional questions about Michael's motives is his treatment of Terri's family. He may be prepared to consign Terri to death, but her parents and siblings are not. So he has repeatedly restricted their access to information about her medical care. Michael refused to fulfill his responsibility to write and turn over guardianship reports to the Schindlers. He also forbade the hospice staff to discuss Terri's medical status with them.
Moreover, he tried to prevent Terri's parents from even visiting her. In March Michael's attorney charged that Terri's parents had attempted to inject Terri with an unknown substance. They pointed out that hospice personnel frequently entered the room when they visited and a police investigation discovered no evidence of misbehavior. The judge called it "a nonevent."
Nevertheless, Michael's attorney, Deborah A. Bushnell, unsuccessfully demanded that the Schindlers "visit Terri in the presence of a security officer," whom they would have to pay. This isn't a new tactic: Four years ago Michael first petitioned a court to prevent Terri's parents from seeing her.
Alas, this history of suspicious behavior will not prevent Michael from arranging Terri's death if Judge Baird has his way. He declared Terri's Law to be "unconstitutional on its face" for violating Terri's privacy rights.
Baird ruled that "authorizing the Governor to exercise unbridled discretion in making the ultimate decision regarding the life or death of a private Florida citizen, without standards, direction, review, or due process protection of that citizen's private desires, exceeds any reasonable concept of 'least intrusive means.'"
There would be good reason to criticize the legislature had it overruled Terri's express wishes. But it did not. It is protecting her right to life from a husband who seems to have almost everything but her best interests at heart. In fact, the legislature is currently considering a measure requiring a living will or other written directive before allowing a feeding tube to be discontinued.
There is a simple way to end all the legal wrangling: Kick the judges, including the Florida supreme court, out of the case.
Transfer Terri to the care of her parents. Let them use the rest of the money originally intended for her to provide rehabilitative care that will give her as active a life as possible.
Michael could get on with his life. He could divorce Terri and marry the mother of his two children. And he wouldn't have to worry about Terri, the Schindlers, the money, or the constant court battles. Terri's parents, rather than jurists and lawyers, would decide her future.
There's nothing simple about the case of Terri Schindler Schiavo. The interruption of a young, vibrant life is a tragedy. But, though disabled, Terri remains alive. And without clear evidence to the contrary, we must presume that she prefers that life to death.
Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Ronald Reagan.