The sad case of Terri Schiavo

Euthanasia and politics

Mar 23rd 2005
From The Economist print edition

A ghastly dilemma which Congress and George Bush have only made worse

EVEN by the desperate standards of a family tragedy that has now lasted for 15 years, the past week has been tumultuous. On March 18th, a state court in Florida finally ordered that a feeding tube be removed from Terri Schiavo, a woman who was severely brain-damaged in 1990. This represented a victory (if such a word can be used) for her husband, Michael, who insists she should be allowed to die, over her parents, Bob and Mary Schindler, who think she can recover.

Yet in a frantic weekend's politicking, which underlined the power of the religious right, the Republican Congress came back from holiday to pass a highly unusual bill giving Mrs Schiavo's parents the chance to appeal to a federal court. George Bush flew back from Texas to sign it at 1.11am on Monday. The Schindlers duly filed a request to a federal court for the feeding tube to be reinserted, pending their appeal that their daughter's constitutional rights had been infringed; but a federal district judge and an appeal court have both already turned this down, unpersuaded that their case stood a chance of success. Those decisions have also been appealed. But, without nutrition, Mrs Schiavo will die after about ten days.

To the Schindlers and many religious Americans, Mr Schiavo and the Florida judges and doctors who have backed him are little short of murderers. Tom DeLay, the House majority leader, calls removing the tube an act of “medical terrorism”. On the other side, Mr Schiavo has called Mr DeLay a “little slithering snake” and many liberal types have protested against Congress trampling over the legal system. The Los Angeles Times calls the new law “a midnight coup”.

What are the rights and wrongs of all this? The Schiavo case is especially difficult on two grounds: the patient's intent and her medical status. Mrs Schiavo did not make a “living will”—ie, a statement of what she would like to happen if she were subsequently to fall desperately ill but be unable to make her own decisions. Her husband claims she told him that she did not want to be kept alive by artificial means; but he did not reveal this immediately, and he has spent the past decade with another woman with whom he has started a family. As for her condition, Mrs Schiavo—whose heart suddenly stopped in 1990, cutting off oxygen to her brain—can breathe by herself, and her parents have also produced a video showing their daughter appearing to communicate with them.

Yet there are also hard facts to consider—facts that the decade of legal battles, encompassing 19 judges in six courts, seem only to have reinforced. First, under American law it is Mrs Schiavo's husband, not her parents, who is now responsible for her. Second, despite the heart-rending video, court-appointed doctors who have looked at her concur that she is indeed in a “persistent vegetative state”. When she opens her eyes and smiles these are, alas, just reflex actions, they say. She is not aware, she cannot communicate and she will not recover. Due process has been followed. That is why the Supreme Court has refused to hear the case three times, and also why the appeals were dismissed this week.

First, do no harm

So why did Congress intervene? Mr Bush says that in cases like Mrs Schiavo's, it is wise to “always err on the side of life”. That is surely correct: in the absence of a living will, the presumption ought to be that someone would prefer to live rather than to die. But such a right cannot be unqualified: should she be kept alive in the minuscule hope of a recovery for 20 years, 50 years? In the end doctors, governed by the law and the judicial system, do have to take such decisions. Furthermore, Mr Bush and Congress need to take account of the costs of their intervention, particularly when it comes to setting all sorts of unfortunate constitutional precedents.

The Schiavo bill is an extraordinary piece of federal interference in the judicial system. In order to get it passed, the Republicans had to limit their bill to Mrs Schiavo; but it will surely justify a surge of similar heart-breaking requests. The bill also specifically tells the federal judge to examine the case “notwithstanding any prior state-court determination”. The Republicans, who are usually stern defenders of states' rights, may come to rue the day when they urged the federal system to ignore them.

In short, for a mixture of motives—some sincere, some political—the Republicans have over-reached themselves. In the meantime, Mrs Schiavo's case should remind any Americans who do not want to put their families through a similar ordeal to start writing their living wills right away.

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