It’s truly sad news that Teri Schiavo has died. Many Christians today are questioning how this happened and what it says about our culture and legal system.
I’ve found this particular case profoundly frustrating. As a Christian who is ardently pro-life, I hate disagreeing with my brothers and sisters who feel so strongly about this case. I certainly do stand with anyone who fears the prospects of euthanasia, assisted suicide, and a culture of death. However, as a lawyer, I understand some aspects of this case perhaps too well. And, as a lawyer, I simply can’t find any fault in how this case was handled, nor can I find any normative principle arising from it which makes it in any way unique. It’s been agonizing to hear otherwise thoughtful people rail against the courts and judges involved in this case and mis-state the nature of the law that was applied. The truth is, the courts applied the law exactly as the people of the State of Florida enacted it through their elected representatives, as confirmed in the independent Guardian ad Litem’s Report.
I’d like to suggest that, if you are a Christian who truly feels Terri Schiavo was murdered, you need to pressure your state legislators to change certain laws that almost certainly are on the books in your state. Before you do that, though, I’d also like to suggest that there are serious questions you need to resolve.
Contrary to the comments of many conservative pundits, the Schiavo case had nothing to do with judicial activism. The truth is that the Florida courts followed a statute that was enacted by the people of the State of Florida through their elected representatives in 1990 and 1999. The court did not interpret the statute in any unique way. It simply applied the law. Generally, this is what most of us judicial conservatives want courts to do.
The Florida statute provides for surrogate decision making by the spouse when a person does not leave a written advance health care directive (2004->Ch0765->Section%20404#0765.404″>FS765.404, and defines the types of medical procedures that may be terminated under the law to include “artificially provided sustenance and hydration” (Cruzan v. Director, APH, a 1990 decision. The Cruzan decision illustrates several things: (1) legal questions about PVS and artificial nutrition and hydration are not novel; they’ve been in the courts and legislatures for decades; (2) Terri Schiavo’s medical condition, and the decision made to remove artificial nutrition and hydration, were not exceptional or novel; (3) most states have had statutes dealing with situations like Terri Schiavo’s for decades, and they are relatively uniform in how they address the situation.
After the case had been decided, the Florida legislature passed a statute (“Terri’s Law”)that purported to allow the Governor to issue a stay of the court’s order. The Florida Supreme Court found that statute unconstitutional based on the separation of powers doctrine. There were good reasons for this decision. Once a court has issued a final judgment in accordance with established law, it’s generally constitutionally inappropriate for the legislative or executive branches to retroactively overturn that judgment. This principle has roots deep down in American jurisprudence. Otherwise, wealthy or politically influential people could destabilize the justice system by obtaining legislative or executive favors every time they lost a case. You can quibble with some aspects of this decision, but you can’t call it unprincipled.
If you are truly offended by the Schiavo case, then, it’s pointless to rail against it as though it were some sort of lightning bolt from the blue. What you need to do is lobby your state legislators to change your state’s laws about advance directives and artificial nutrition and hydration. Specifically, you need to persuade them to (1) prohibit any surrogate end-of-life decision making absent a clear, written advance directive; and (2) define “medical care” in the advance directive statutes to exclude artificial nutrition and hydration.
Before you do that, though, ask yourself if that’s what you really want. If you are in a horrible accident and lose all of your higher brain function, and you have no capacity for interaction with anyone and no cognitive awareness of your surroundings, do you really want your family to be required to continue feeding your body through surgically inserted tubes? Do you really believe, based on a Biblical understanding of personhood, that you would still be present in that body, or do you believe you’d already be present with the Lord? Do you really think the government should deprive you of the ability to spell out your wishes with respect to this kind of medical decision?
Personally, I think the Schiavo case was a horrible tragedy and that Michale Schiavo acted immorally by not turning over gaurdianship to her parents. However, I don’t think this was a systemic legal failure or any kind of cultural slide further towards a culture of death. I don’t want the advance directive laws in my state changed. The problem in this case was individual, not systemic, and is best addressed through the Great Commission rather than through civic protest.
9 replies on “Terri Schiavo and the Law”
Terri Schiavo: Judicial Activism?
Sadly, Terri Schiavo died today at 10 AM EST. I haven’t written about Terri on my blog before, mainly because I have mixed feelings about this case.
While it is certainly a tragedy, I am also glad that our justice system worked the way it is suppos…
David:
What you are advocating is something all Christians should be eager to do: think through the hard issues and decisions of life, refuse to settle for one-size-fits-all solutions, and learn to live with the questions instead of forcing answers where there are none. I am not so naive, however, to believe that this is what all Christians actually are eager to do. Most American Christians, I fear, don’t want to have to think too hard about such issues because it gets in the way of self-fulfillment and the pursuit of happiness.
(If I sound cynical, it’s because I’m a realist and old enough not to be romantic about the nature of the human heart. Even the redeemed heart.)
Our Christian culture gravitates toward the young, and the young tend to like neat packages and simple – or simplistic – solutions. Life is hard but we want it to be easy; the messenger of difficult decisions may not be gladly received.
I agree that the courts followed the law and did not engage in judicial legislation. Perhaps that is what is so maddening for some people: the one time they want the courts to be active, they’re not.
At the risk of using Terri’s death for gain, there is but one legacy I hope her death produces; it is this: to have Christians who ought to know better stop worshiping the U.S. Constitution and the American way of life, to recognize that democracy is not biblical (the voice of the people becomes the voice of God), and to accept that ours is a sinful and fallen form of government. To be more Christian and less American.
Our hope and future is not in the White House, Congress, or SCOTUS. He is elsewhere, and to Him alone must we look.
My problem with the Terri Schiavo case is not so much with its legal aspects (though I think there were some problems there), as with its moral aspects. What is the moral case for allowing Terri Schiavo to starve to death?
Here you seem to hint at a body/person dualism that is rationally and philosophically untenable:
“Before you do that, though, ask yourself if that’s what you really want. If you are in a horrible accident and lose all of your higher brain function, and you have no capacity for interaction with anyone and no cognitive awareness of your surroundings, do you really want your family to be required to continue feeding your body through surgically inserted tubes? Do you really believe, based on a Biblical understanding of personhood, that you would still be present in that body, or do you believe you’d already be present with the Lord? Do you really think the government should deprive you of the ability to spell out your wishes with respect to this kind of medical decision?”
Here are some questions that come to mind in response to your queries. If Terri Schiavo is already “present” with the Lord, why shouldn’t her “body” be administered a lethal injection, which seems to me, given your apparent position, more compassionate for all concerned? What would be wrong, for that matter, with simply burying or cremating her “body” without starving her to death first?
I guess I’m asking you to explain the philosophical/theological underpinnings of your apparent body/person distinction? How do you defend the notion that the body is a subpersonal entity?
Kate, thanks for your thoughtful comments. The philosophical / theological underpinnings of my view are set forth in my two earlier posts on this issue. Essentially, I don’t think a monistic view of personhood — that personhood is coequal with the physical body — is Biblical. I’m also not a dualist (personhood consists of two separate components of body and soul) either. I hold a conditional unity view of personhood. Personhood has different aspects, including body, mind, and soul, and these different aspects are part of a unified whole.
In conjunction with this condition unity view of personhood, I apply the Biblical concept of humans as created in the “image of God.” What is the image of God? Most Biblical scholars agree that it is not a physical image. Rather, it has something to do with our capacity to reason, relate, communicate and create.
Finally, I apply what I believe is a Biblical understanding of death. Death temporarily separates body from the other aspects of personhood, pending the Resurrection — hence the “conditional” aspect of the unity of personhood. The aspects of our person that reflect the image of God continue to exist and one day will be reunited with a body. The current physical aspects of our personhood — the body — is no longer connected to our “person.” We treat physical remains with respect, but we appropriately dispose of them through burial or cremation, knowing that the “person” is no longer present in the body.
If this view of personhood is Biblical, and I belive it is, then it is possible, given modern medical technology, that a body could continue to be maintained even though the person has gone on to the intermediate state pending the Resurrection.
As an extreme example, imagine a person whose brain was completely removed from her body, while the heart, lungs and other organs were maintained through artificial respiration, circulation, nutrition and hydration. I think we’d probably agree that the “person” in that circumstance had died, and that our technology was merely keeping some parts of the body from decay. If you wouldn’t agree to that, I’d ask how much of the body needs to be maintained before the “person” is gone. For example, if we take the heart from a person who has recently died and transplant it into another person, does the “person” who recently died still exist in this life?
The persistent vegitative state (PVS) is several steps back from my “brainectomy” hypothetical, but the principle is the same. At some point, when there is nothing left of most of the brain but liquid, and there is no remaining capacity or potential for the attributes of communication, relationship, and creativity that reflect the image of God, I believe the “person” has gone on to the intermediate state, and nothing is left but the mortal body.
As to the treatment of that body, even though the “person” is gone, I believe an ethical distinction remains between actively terminating bodily functions and removing artificial medical support for those functions. A lethal injection or cremation before cessation of all bodily functions would constitute an affirmative act that would betray a lack of respect for the bodily aspect of personhood. Therefore, I would not be comfortable with that kind of action.
However, the removal of artifical medical support is a different matter. In that case, we are allowing the body to take its natural course. I should note here that I don’t see any material distinction between turning off a respirator and removing artificial nutrition and hydration. In either instance, a fundamental requirement for bodily function — air, hydration, or nutrition — is being provided by technological means — a respirator, or tubes inserted by medical professionals into the gatric tract through which nutritional syrum and water are metered by a machine. And, in either case, the removal of those technological life supports will result in the cessation of bodily functions. In my view, under these circumstances, turning off a respirator or an artificial nutrition and hydration system is a withdrawal of medical treatment that allows the body to take a natural course. This, in my view, is ethically different than assisted suicide or euthanasia.
I can’t agree with you on the separation of powers issue. A judge’s job is to interpret the law as it stands. A legislature’s job is to pass new laws if the current ones aren’t good enough. So if a judge declares that the law says such and such, and the legislature thinks that’s a bad result, they have an obligation to pass a law that remedies the problem. They didn’t go with the right way to remedy the problem by making it specific to the case or by transferring it to the executive. They should have changed the original laws. Still, it’s not a separation of powers issue.
Jeremy — that’s really not an accurate view of the judge’s role in our government,even under a conservative view of judicial authority. First, judges do make law through the common law, which exists apart from statutory law. Huge areas of coduct are governed primarily by common law rather than by statutory law. So, it’ simply isn’t accurate to say judges never make law. And, the common law isn’t a recent development invented by liberal judges — in fact, in most areas, the common law tradition predates statutory law by a long shot, and stretches back to pre-colonial days in England.
Second, it’s the judiciary’s role to pass judgment in disputed cases under the existing law, not the legislature’s. As you note, this often involves interpreting the statutory law. It also involves weighing the facts and issuing binding and authoritative judgments based on the court’s understanding of the common law, statutory law and factual record applicable at the time of trial. This is what the trial court did in the Schiavo case.
If the legislature then passes a special law overriding the court’s findings and judgment in a given case, that most certainly is a separation of powers issue. What that would mean is that the a court’s judgment has no real force. Any judgment of any court could be overturned by the legislature. The legislature would be acting as a sort of super-supreme appellate court.
This may sound superficially appealling, but if you think about it, it’s deeply problematic and destructive of a fair judicial system. It would destroy the principle that judicial judgments should be insulated from political interest group pressure and majoritarian rule. Justice in the courts is supposed to be disinterested and blind. The courts may not always live up to this ideal, but legislatures never do, by design. Legislative veto of individual court decisions would deprive every citizen of the right to a neutral, objective judicial arbiter of his or her case.
It is a different matter to discuss which branch of government should change the law if it is a bad law. Here I would agree with you that the legislature has the primary role in amending legislation (although courts still have a role in reviewing whether legislation comports with superior sources of law such as a constitution). Courts should not create new rules that ignore or contradict governing statutory law. So, if the statutory law in effect at the time of the Schiavo trial said that only the patient’s parents can make medical decisions for a PVS patient, and the judge had ignored that statute and crafted a new rule, that would be a usurpation of the legislature’s authority by the judiciary. But that isn’t what happened.
I agree 100% with everything Jeremy said. It is a separation of powers issue because the legislature passes a law, then the courts apply the law to a specific case. If the legislature doesn’t like the law, they can change it, but that doesn’t change the original decision, and it does not second-guess the court’s findings of fact.
I did not hear Jeremy saying courts never make law. They do, of course, but only where existing precedent has not spoken, and they do so by application of other precedents by analogy. No new law was required here. The law was clear-cut. Every lawyer I have spoken with had the same view (well over a dozen). In fact, any first-year law student could have predicted with 100% accuracy that the TRO would not be issued. The courts did not run amok in this case, the legislative and executive branches did. The most troubling aspect to me is the inflammatory rhetoric by elected representatives (guess who I’m thinking of) to suggest that the courts have broken the rules. This fosters thinking of radicals that violence against judges is justified. These judges made brave decisions, they were clearly the right decisions on a legal basis, and they should be lauded by both sides. This is not the first time I’ve heard a lawyer blame the stupid courts to take attention away from the bad lawyering that cost his/her client the case.
Finally, I think it is a good thing that our laws are passed by popularly elected folks, not academics (who are “experts” on ethics and morality) or religious authorities. I prefer to make my own end-of-life decisions.
I meant to refer to David’s post above, not Jeremy’s. Who’s Jeremy?
Big Stooge — thanks for the comment! (Jeremy was another commenter who has an excellent blog of his own called “Parableman”).
What do you do at MoFo? I had a case or two against them back in the day. Excellent firm.