Legacy MattersImagine Terri were your sister, your daughter, your aunt. Could you bear it knowing that she would be starved to death over a period of two weeks.
When her attorney Barbara Weller told Terri what was happening, that the Judge had ordered the removal of her feeding tube, "Terri cried and could not be quieted"
Peggy Noonan writes a special piece, If Terri Schiavo is killed, Republicans will pay a political price.
There is a passionate, highly motivated and sincere group of voters and activists who care deeply about whether Terri Schiavo is allowed to live. Their reasoning, ultimately, is this: Be on the side of life.
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On the other side of this debate, one would assume there is an equally well organized and passionate group of organizations deeply committed to removing Terri Schiavo's feeding tube. But that's not true. There's just about no one on the other side. Or rather there is one person, a disaffected husband who insists Terri once told him she didn't want to be kept alive by extraordinary measures.
He has fought the battle to kill her with a determination that at this point seems not single-minded or passionate but strange. His former wife's parents and family are eager to care for her and do care for her, every day. He doesn't have to do a thing. His wife is not kept alive by extraordinary measures--she breathes on her own, is not on a respirator. All she needs to continue existing--and to continue being alive so that life can produce whatever miracle it may produce--is a feeding tube.
But in the end, it comes down to this: Why kill her? What is gained? What is good about it?
This case is being too quickly labeled as a conservative issue, which it is not. It is a very difficult case that will impact all families who have a loved one who did not leave a written directive and who will die if a feeding tube is removed.
Most families in these agonizing situations will grapple and find some sort of resolution but not without a lot of pain and agonizing. Some families will be split irrevocably.
Of course, the biggest lesson here is that every adult should have advance medical directives or a health care proxy.
The most difficult area, the grey area is when families are split. When one side wants to "do everything they can" and the other wants to "let them go" and there is no medical directive.
Except in this case, "letting Terri go" requires her to be starved to death. She is alive, conscious, interacts with her family and the people around her, requires no life support and is not brain dead in any way. We don't allow dogs, convicted murderers or terrorists to be starved to death. Why ever should we countenance starvation of an innocent woman.
Katherine Lopez writes
A lot of folks who consider themselves "pro-life"--get worked up about abortion--want Schiavo protected. Those who are indifferent to or support legal abortion aren't particularly interested in hearing about the case--or assume her husband knows best.Posted by Jill Fallon at March 19, 2005 4:58 AM | Permalink
I think the key in this case are these fact questions. This woman has not gotten a fair shake in the judicial process. And medically, she may not have gotten what she could--like the chance at rehab. If more people knew some of these basic facts of unfairness, and could see some of these videos ..., I think this "issue" would transcend labels and things.
This is the third time that I remember reading such a high profile case. Every time I am struck with how very, very fortunate we were that my sister died of a massive kidney infection, or she, too, would have been one of these cases--brain dead, but otherwise body healthy. I ache for the people who have to make these terrible decisions, and it's even worse when they are fighting each other to do what they each think is "right."
Posted by: Bev at March 19, 2005 3:00 AMI'll limit myself to the Lopez quote.
The attitude that she exhibits is one that way too common in this case. "If more people knew some of these basic facts." Implied within that is that if those of us who disagree would just take time to examine the situation then we would agree with her. Any intelligent person would.
In her small quote there are at least 3 points that, if she "knew some of the basic facts" she wouldn't have said.
Chance at Rehab. It's not arguable that Michael Schiavo spent the first 4 years of Terri's incapacitation getting her every advantage possible. He went to nursing school so that he could better take care of her. She was taken to CA to get some experimental treatment. The nursing home staff complained bitterly about how demanding he was.
But undoubtedly Ms Lopez found her statement on a website somewhere so she sees no problem in repeating it as truth. Read the comments of her Guardian Ad Litem.
http://abstractappeal.com/schiavo/trialctorder02-00.pdf
Fair shake in the judicial process. If she hasn't gotten a fair shake, then nobody in a guardianship case ever has. This has been litigated continually since 1996. Two trials, 11 trips to the appeals court, 4 trips to the state supreme court, even 2 attempts to go to the US Supreme Court (both rejected). Just what kind of process does Ms Lopez think she should have? Her earlier attitude is on display again...if only smarter people were involved of course the trials would have come out differently.
And the videos -- the lovely videos. In my humble opinion the most cynical part of this entire cynical episode. Videos on websites show Terri Schiavo lovingly looking at her mom. She follows a balloon across the room. These videos were released to garner public support, not influence the legal proceedings.
Like most people in a Persistent Vegetative State, Terri Schiavo moves. She twitches. She twists. Her eyes follow objects that are invisible to the rest of us. She makes sounds. These videos were made by filming her for over 4 hours, then editing the part posted on the web down to only 4 minutes and 20 seconds. Since she was moving all of that time there's a good chance that she will appear to respond to stimulus a few times during the 4 hours. Only an extremely cynical person could produce and show such a video.
The appeals court went out of their way to examine and comment on the videotapes and the difference between the long and short versions...
http://www.2dca.org/opinion/June%2006,%202003/2D02-5394.pdf
If Ms Lopez only knew some of the basic facts...
Posted by: Buckland at March 21, 2005 8:58 AMWonderful post over at Harry's Place, Jill. Congrats.
Posted by: Laban Tall at March 21, 2005 9:36 AMBuckland,
In all the discussion of all the court cases, who took her role?
What is often forgotten in the debate over Terri Schiavo is that she NEVER had anyone to represent SOLELY her interests in this very adversarial case. Michael acted as her guardian and sometimes Judge Greer acted as her guardian ad litem.
Whatever you may think of Michael, this case would not have gone on as long as it did or with so much controvery, had a permanent Guardian Ad Litem been in place. One of the reasons I fault Judge Greer for his handling of the case is that a permanent GAL was not appointed.
The Guardian Ad Litem appointed by Governor Bush and reporting back to him recommended that a permanent GAL be appointed as long as a controversy and an adversarial legal relationship existed in Terri's case.
You and I may disagree over interpretation of the facts and the videos in Terri's case, but don't you think she would have been far better off with a Guardian ad Litem?
Posted by: Jill Fallon at March 21, 2005 11:48 AMBev
I'm sorry for your sister's death and she probably was fortunate that she died of an infection. Wasn't pneumonia called the old man's friend because it offered a painless death to a suffering person.
My only quibble is over "brain-dead." Terri is not. If she were brain dead and kept alive only by artificial means, there would be no controversy.
Posted by: Jill Fallon at March 21, 2005 11:51 AMJill Fallon,
On the Guardian Ad Litem issue I have a couple of thoughts, but I don't guarantee clarity or consistency in those thoughts.
Frankly I haven't a clue whether things would have been better with one. I have no idea how or if a permanent GAL would have been useful. I would really be interested in why you think this would have solved (lessened?) the problems.
First, I'm having a hard time getting my mind around the concept of a permanent GAL in a case like this. How do you advocate in the long term for someone who can't communicate (I'm discounting the fanciful stories about her speaking)? What value does a GAL add when there are just 2 paths for the advocate to choose? No mediation possibilities. All decisions involve following a path advocated by 1 of 2 parties (who see every development with exclusively through their own position with very little room for compromise)? The tubes stay in or they come out. She's "starved to death" or "forced to linger against her wishes". Any advocate would end up just parroting the requests of one camp or the other.
And would the GAL have been seen as fair and unbiased? This isn't an issue where there are many convenient middle grounds. Just a few GAL postions that favor the right hand over the left and we're back where we started -- "Outrageous rulings", "bias", "clear conflict of interest" "no due process".
So I would be very interested in your thoughts on why one would help the process. Frankly, I'm agnostic on the issue.
Posted by: Buckland at March 21, 2005 11:00 PMLooking at Judge Whittemore's decision he addressed the GAL issue.
Essentially he said that 3 were appointed briefly at key times over the years (I was aware of 2, didn't know there was a 3rd). He said that appointing one when needed is enough.
http://abstractappeal.com/schiavo/fedctorder032205.pdf
This probably means it's over. There will be the perfunctory visit to Federal Appeals in Atlanta and US Supreme Court (both will decline to hear).
My impression in reading the opinion was Judge Whittemore made sure that his opinion would stick. Therefore he declined to rule on the constitutionality the law itself and made a big deal of going through the facts of the case:
1> She got due process.
2> She got 14th amendment due process.
3> She got 14th amendment equal protection.
4> Her religous freedom wasn't violated.
He gave no opinion on the law itself because that could have been appealed and possibly won. The others will be harder to convince an appeals court that hearing it would be interesting.
Posted by: Buckland at March 22, 2005 9:03 AMBuckland
I agree that the Whittemore decision means it's probably over. What I don't understand is why Whittemore didn't follow what I thought was the clear intent of Congress which was a de novo review of the facts, not just of the process in this case.
I just wished they had fought for the habeas corpus right of review in federal court for Terri and for others in her situation.
What they did with a private bill - and I will ascribe only good motives here, to keep Terri from starving to death - was politicize the process to no one's benefit.
As for the Guardian ad Litem. Apart from the sheer barbarity of having an innocent woman starve slowly to death, what's been disturbing about this case as been that no one ever spoke just for Terri, no one represented her best interests. Once the controversy broke out between spouse and parents, each had their own position.
I do think Michael worked hard to help Terri in the first few years, but at some point he clearly gave up and, in the parlance of the day, "moved on". I'm not so sure I wouldn't have done the same thing in the circumstances. At that point, her care deteriorated by all reports. He clearly wanted her to die, she had become inconvenient. At that point, some seven years later, he "remembered" her comment during a TV show that she didn't want to live like that. At that point, her best interests, weren't his.
Yet Judge Greer found his testimony clear and convincing and no appeal court would overturn his findings of fact. Let me quote here from O. Carter Snead, general counsel for the Council of Bioethics
"The court's failure to appoint a guardian ad litem (following 1998);
The court's usurpation of the guardian's role (in direct violation of Florida law);
The court's reliance upon insufficient evidence regarding T. Schiavo's wishes (namely, the recollection of her husband that T. Schiavo's had made ambiguous, casual remarks about "not wanting to be a burden" many years prior, in a wholly unrelated context);
The court's refusal to consider probative evidence of T. Schiavo's wishes (namely, witness testimony that Mr. Schiavo was lying and that he had never, in fact, discussed end-of-life care with T. Schiavo); and
On remand, the court's shifting of the burden to the Schindlers to demonstrate that T. Schiavo would have wanted treatment under the present circumstances (inverting the logic of the Florida laws).
These irregularities make it impossible to conclude that T. Schiavo's wishes under the present circumstances were proven by "clear and convincing" evidence, particularly in light of the presumption (under Florida law) that she would have chosen to receive life sustaining treatment. Any claim, therefore, that re-insertion of the tube is contrary to Terri's wishes (and thus an encroachment upon her right to refuse treatment) is groundless. We simply do not yet know what her wishes would have been.
On advice of a lawyer, ten years ago, the Schindlers stipulated that Terri was in a persistent vegetative state. Since then, all the information they have supplied concerning Terri's ability to be rehabilitated has not been allowed because of the earlier stipulation.
A permanet guardian ad litem could have gotten that information is. A permanent GAL would have had access to the bone scan in 1991 the Schindler's never saw and investigated. Ditto on the CT scan. See http://codeblueblog.blogs.com/codeblueblog/ for a discussion of both. A GAL would have had access to all the people caring for Terri and would listen to their accounts of her responsiveness, attempts to talk, and even alarmingly tales of attempted murder. He could have assesssed their probative worth and made a report. Judge Greer would hear none of it. A permanent GAL would have ordered MRI's.
I just read today that Dr. William Hannesfahr, nominated for the Nobel Prize for his work in brain injury, days that her hypoxic encephalopathy is a type of stroke he treats every day with success.
The point is there was no a sufficent examination of the facts, of the diagnosis or of the possibilities for rehabilitation, or most of all what Terri would have wanted.
With a permanent GAL, an advocate for Terri's best interests, these tests and more facts would have come to light and his reports would have been dispositive. Instead we have allegations and counter charges, grandstanding in the press and soon to come all sorts of conspiracy theories.
But I admit that guardianship in most states, and I understand in Florida, is a scandal.
It's a sad case all around. The only silver lining I see is that everyone is talking about living wills and health care proxies.
Maybe more will do something to prevent such a mess in their own lives.
Oops, forgot to give a link to the Hammesfahr piece. He personally examined her, her medical records and her x-rays.
He said "She would have benefited from treatment years ago, but it is not to late to start now." http://hyscience.typepad.com/hyscience/2005/03/terri_schiavo_c.html
I'll wade back into this on a couple of points.
"At that point, some seven years later, he "remembered" her comment during a TV show that she didn't want to live like that."
That's just demonstrably not true. There were 18 witnesses who testified during the hearing that determined what Terri would want. Thirteen testified about various legal, medical, or religous points. Five testified about conversations of what Terri wanted.
Terri's Mom testified that she had had a conversation when Terri was 17 or 18 during the Karen Anne Quinlan news coverage. Terri supposedly said that she would want to be left alone. Michael's lawyers showed that the Quinlan coverage was happening when Terri wa 11 or 12, not 17 or 18.
A girlfriend (unnamed in court documents) said that they watched a TV move together about Quinlan when Terri was in college and again she made the "leave me alone" comment. The girlfriend had an excellent memory of the event during trial, right down to the commercials that played during the movie. However she had only a very vague recollection of the night 2 weeks earlier during deposition.
As a lawyer I'm sure you can understand how issues like this can destroy credibility before a judge.
Michael and Terri, Michael's brother and his wife went on vacation together. All 3 testified that the 4 of them had a series of long conversations about the subject during the vacation. Terri was adamant that she wouldn't want to live like that. These conversations were later than either of the earlier ones and the witnesses were much more credible. No TV show involved. It's best to trust court documents over what you find on the internet, but as a lawyer you know that.
http://abstractappeal.com/schiavo/trialctorder02-00.pdf
I'm not sure what evidence wasn't considered about Schiavo "namely, witness testimony that Mr. Schiavo was lying and that he had never, in fact, discussed end-of-life care with T. Schiavo". Do you have a citation on that, and not something that's put out on a website?
As for the Bone scans -- if they exist (big IF in my opinion) they're in the hands of the Schindlers, not M. Schiavo.
http://abstractappeal.com/schiavo/trialctorder11-02-scan.pdf
The Schindlers claimed to have them in 2001, 11 years after they were done. Schiavo's attorneys said that they had never seen them. Greer ruled that they were immaterial after 11 years. It's all there in the decision. So my question is -- Why were they held for 11 years? Why haven't they been released in the subsequent 3.5 years?
The CT scans are available on the internet. If the Schindlers don't have them it's their fault.
No MRI's have been done. The MRI is not a new technology. It was available in 1990 when the Schindlers were partially in control of Terri's treatment. They were available in 2001 when the doctors appointed by the Schindlers examined her. If they would have been valuable, why did Dr. Hammesfahr nor Dr. Maxfield ask for one when they had the chance? They didn't find it valuable then, and it's just a delaying tactic now. If an MRI were done then an fMRI would be wanted. Then a PET scan. The a new and even better pic. All 5 doctors that examined her for the court didn't see a need. The CAT scan showed key brain parts missing. An MRI wouldn't have found them.
http://abstractappeal.com/schiavo/trialctorder11-02.txt
I would be interested in your citation of Hammesfahr being nominated for a Nobel Prize. It may be true, but I'd be VERY surprised. My guess is it just appeared on the internet, like way too many "facts" in this issue. But I could be wrong.
The "accounts of her responsiveness, attempts to talk, and even alarmingly tales of attempted murder" are nothing more than attempts to smear M. Schiavo. Do you really think that the temporary GAL would have said the things he did it she was really able to talk? Do you think that law enforcement would have stayed out of this if there really were this "evidence" of murder? That the FL Attorney General could contain himself if it actually existed? That the nurses who care for Terri, with 1-2 exceptions, haven't jumped at the chance to show she speaks, smiles, and sings (as one account had it)? These stories are put out expressly to demonize a single person. The "politics of personal destruction" is horrible but somewhat understandable when talking about a person that chooses to put themselves in the public eye. To repeat such stories about a private citizen that came to the public eye through no fault of his own is inexcusable.
Court decisions are publicly available. It's unforgivable for a lawyer to trust what was found on the internet rather than take time to read the actual documents.
Posted by: Buckland at March 23, 2005 12:45 PMOn rereading, the tone of my last comment came across as more harsh than intended. For that I apologize. I stand by the facts presented, but apologize for the tone.
Posted by: Buckland at March 23, 2005 12:49 PMAfter doing a little research, I was able to find out some information on Hammesfahr's Nobel Prize nomination.
First, the Nobel Prize Committee doesn't release names of nominees, even to the nominees, for 50 years after a prize is awarded. They expressly don't want people using the term "Nobel Prize Nominee" on resumes.
There are 2 levels of nomination. Anyone can "nominate" another person for a Nobel Prize. However the Nobel Prize committee screens the nominations and only "receives" nominations that are serious. Both of these levels are referred to as "nominations" at various times.
Dr. Hammesfahr was "nominated" in that a letter was sent by a congressman saying essentially "take a look at this guy". There's no evidence that the committee did take a look at him. And indeed there would be no evidence either way as the committee operates in strict secrecy on these matters.
So, Jill, if you think that a Nobel Prize nomination in Physics would benefit your resume, then send me the cost of an overseas letter and I'll be glad to do it. Since nominations for 2005 closed in Jan, nobody will know until 2056 if it was a serious nomination or not.
Posted by: Buckland at March 23, 2005 1:42 PMBuckland
You make me laugh. I'd love to be nominated for a Nobel prize and I'm chagrined to know so little about it and how I may have been taken in.
You have done much better research than I in reading all the court documents. While I am a lawyer, I no longer practice and I don't present any legal advice on the site, but you are right.
I should have done more in depth reading of all the background.
I did some, but it's such a long tortuous case, I quite frankly don't have the time. Though I clearly found time to opine.
I've also brought a lot of emotion to my interpretation of the facts I know. I'm still horrified that an innocent person is dying such a painful death. I still have a lot of questions about Michael Schiavo, though I can see some of my remarks were over the top and others could be interpretated that way. I found the politics of personal destruction reprehensible and if I have contributed to that in any way, I sincerely apologize.
I appreciate the links you've given me and I have read those as well as some others and learned things I didn't know before. I still feel that habeas corpus rights should be given to the incapacitated who have left no directive and who have families that disagree and whose feeding tubes are to be disconnected by court order.
If any light comes from the spreading murk around this case, it is the need for better end-of-life planning and end-of-life care.
Clearly we are going to see a lot of changes in both as the boomers get ready for their last good-byes. I hope to influence some of them. So maybe a Nobel Prize nomination in biology instead of physics?
"We don't allow dogs, convicted murderers or terrorists to be starved to death. Why ever should we countenance starvation of an innocent woman." That is so true. I think we should keep her alive. Still it's too late to save her now but they should of given her something to help put her to rest instead of starvation. Best whishes. :)
I have never seen the poorest attempt of spin as michael schavio's lawyer. From the way he described Terri's death, you would think she was dancing and singing. To say a person who is starved and thirsted to death is resting comfortably and at peace is beyond lies; it is outrageous. Michael didn't want to be in the room with the family because it would be "awkward". Perhaps his awkwardness is truly about having a wife and a wife to be. If you can't live the vow, until death till us part,
you give up the right to speak for the voiceless.
Terri is in heaven, though I will pray for her each day, it is Michael and his lawyer that need our deepest prayers. To deny access to the family in Terri's final moments, or create confusion so a final visit wouldn't take place;
is beyond cruel. It shows that Terri's wishes weren't fufilled; and this whole case which has wreaked with doubt from the start ended in a tragic way. People in power in this case failed beyond miserably. Judges didn't take adultery
seriously, republicans came out strong and then chickened out, democrats ran for cover and stayed silent, and the supreme court ducked for cover as well. When their is doubt involved in a person's wishes, life must prevail. It seems that the only people who were heroic in this case was Terri's true family; her beloved mom, dad, and siblings. The people who were with her and knew her and loved her till the end. God bless this family and Terri. Forgive the so called medical experts Father. They know not about the human spirit in Terri; that fought for 14 days to live. They know not about the value of the heart and spirit; for these things can't be proven in their research labs. So, to them, they are dismissed. Terri will live on in heaven, but for those who failed to act or acted with a certainty that didn't exist about Terri's wishes, or those who ran for cover; do some soul searching if you could get your head out of a text book for just one moment. Now that would take a miracle.