Blogs > Liberty and Power > The Terri Schiavo Case

Mar 19, 2005 2:17 pm

The Terri Schiavo Case

The sad case of Terri Schiavo brings important medical-ethical issues to the fore. But this is not a hard case. As a general principle, when there is reasonable doubt about an incapacitated person's wishes regarding life-support and when someone is willing to pay for continued support, a spouse should not be able to terminate it. In this case, there is no written proof that Terri Schiavo expressed a wish not to be kept alive. All we have is her husband’s and others’ say so. Not good enough. In fact, according to Terri Schiavo’s parents, “When he [husband Michael Schiavo] promised the malpractice jury back in 1993 that he would take care of Terri for the rest of his life, Mr. Schiavo said nothing to the jury about Terri not wanting to be sustained on anything ‘artificial.’”

Not only was Michael Schiavo awarded money by a jury for her perpetual care, it has been reported that others have offered to pay for her life-support. Add to these facts that ten years ago Michael Shiavo commenced a romantic relationship with another woman whom he describes as his fiance, has had two children with that woman, and has announced that he has “moved on” with his life, and his wish to disconnect his wife from feeding and hydration tubes becomes suspect and indeed irrelevant. The Florida courts long ago should have excluded Michael Shiavo from the matter, declaring that he has a conflict of interest, and recognized Terri Schiavo’s parents as having her best interests at heart.

Cross-posted at The Szasz Blog

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Irfan Khawaja - 8/4/2006

It would only kill "her" if she was the person she was before the brain damage--the issue you've evaded more or less systematically from the very beginning of this discussion.

Irfan Khawaja - 8/4/2006

How is that a response to my claim that your "therefore" doesn't follow? How, for that matter, was it supposed to follow?

You feel free to make claims about what I'm "evading" (in the previous thread) but you can't follow a train of argument one step before you change the subject to something else.

Irfan Khawaja - 8/4/2006

I think you're missing my point. Apart from the question of whether interests are connected to rights, my whole point was that Terri Schiavo isn't a person. An entity in a persistent, irreversible vegetative state ISN'T a person.

Irfan Khawaja - 8/4/2006

Why err on the side of declaring an irreversible vegetative state to be equivalent to personhood? For that matter, why err on the side of violating Terri's wishes?

Irfan Khawaja - 8/4/2006

It wouldn't violate her rights, but it would be immorally disrespectful of her body.

A corpse isn't a person, either. Would it be "okay" to have sex with one? Well, it wouldn't be rape, but...I leave the rest as an exercise.

Irfan Khawaja - 8/4/2006

Doesn't follow--at all.

Irfan Khawaja - 8/4/2006

Your argument presupposes that Terri Schiavo is a person. She isn't. She was a person. Now she's a non-person in a persistent, irreversible vegetative state. There is no intelligible sense in which Terri Schiavo exists qua person, or has interests qua person, or has rights qua person. So there is no intelligible sense in which the principle to which you've alluded has any application to the present case.

There is thus no "conflict of interests" between Terri and Michael Schiavo: he has interests; she doesn't. Nor can Terri's parents have her "best interests" in mind. There are no interests to have in mind besides Michael's. For his part, Michael Schiavo has very properly "moved on". His responsibilities to Terri Schiavo ended a long, long time ago. The more this case drags on, the more egregiously his rights are being violated.

You're right that it's not a hard case, but for exactly the opposite of the reason you've given, and to exactly the opposite conclusion.

Irfan Khawaja - 8/4/2006

Well, now you seem to have shifted the ground of your argument entirely. Previously your claim was that there was a "conflict of interests" and the parents ought to take over because that was in Terri Schiavo's best interests. Are you still sticking by that argument, or is this a new one entirely? If you're sticking by it, I'd be curious to know in what respect Terri Schiavo is a person and can have interests in her current state.

But if she's not a person, as I say, then the wishes that she expressed when she was a person should dictate what's to be done when she isn't one. The evidence indicates that she didn't want to be preserved in her current state, and that seems reasonable insofar as her being alive in her current state is of no use to the entity that was capable of expressing wishes, ie to TS the person.

To say that Michael Schiavo is "interfering" presupposes that the parents have an antecedent right here--an antecedent right to override wishes expressed by Terri Schiavo, the person. By what right do they interfere with Terri Schiavo's wishes? None.

Perhaps you can demonstrate that Michael Schiavo is lying about Terri's expressed wishes. If so, you're going to have to do better than insinuate that there is a "conflict of interest" involved in his testimony. If there are no interests, there is no conflict of them.

If you can't demonstrate he's lying, then we should take his claims as truth. And if they are true, then Terri's own wishes, expressed as a person, should govern her post-mortem condition, not her those of her parents (or anyone else).

This should illustrate the point: Suppose I tell my spouse I don't want a religious burial, and I die prematurely. She starts the non-religious funeral, but my parents stop it by court decree, insisting
that she is a liar, and IK absolutely MUST have a religious burial. In that case, it is the parents who are 'interfering', and the spouse who is carrying out my wishes. The spouse's decision should govern, not the parents'. Same basic principle in the Schiavo case.

Irfan Khawaja - 8/4/2006

I don't think the husband's claims are suspect in the least. What has he done? By my lights: He's lost his wife long ago and now has a new fiance. Nothing suspect about it. I would have given him that advice myself.

You seem to be assuming that unless Terri indicated that she didn't want to live, she must have wanted to live in her present situation. That might be the default assumption if she, the person, were still alive. But on my assumption that she isn't a person, we have to make a judgment about which of two things she would have wanted when she was one.

Michael says she wouldn't have wanted to live in this state. I don't see any actual reason to doubt him. You do. OK, what is the counter-evidence that she wanted to live in this state? How does it do, comparatively speaking?

As for life and interests: Well, as an Objectivist, I would say that the concept of interest doesn't just presuppose 'life'. It presupposes life qua ___, where the blank is filled in by a certain kind of conditional entity, in Ayn Rand's sense of that term. In this case, the kind of conditional entity is a person, which Terri Schiavo isn't. If you take a glob of flesh out of me, it may consist of living cells, but it doesn't have glob-interests, 'interests qua glob'. A glob isn't a conditional entity. Neither is Terry Schiavo.

I don't think you can be married to a non-person, much less an entity incapable of initiating action. So I wouldn't grant that Michael is still married to "her". I don't even grant that "she" strictly speaking exists. So on my view, he obviously is a widower.

He can stop others from feeding her because, as he says, it's against the wishes she expressed to him when she was alive.

To answer your other question: I would say that a necessary condition of someone's being a person is that their consciousness has to be capable of directing their actions. An impairment implies that you have that capacity to a diminished degree, given your level of development. But if someone completely loses the capacity (ie irreversibly), they've lost personhood. And Terri Schiavo is as clearly in the latter category as you can get.

Sheldon Richman - 3/25/2005

I was accepting for argument's sake that she isn't a person (rather than an incapacitated person, having been a functional person previously). If you are right, what objection is there to her parents taking custody and sustaining her life? Whose rights would be violated by that?

The only promising answer would be that a competent court has found "clear and convincing evidence" of her wishes under these circumstances. (Why should a nonperson's previous wishes be respected by anyone?) I respect the judge's finding under the law as written in Florida. However, I would favor amending the law to require a written statement of intentions in order to prevent abuse by a guardian.

Sheldon Richman - 3/25/2005

You're saying it would not kill her? That leaves only two possibilities: she's dead already or she is invulnerable. The second can't be true, and if the first were true, there would be no public controversy. Which is it? Or are you saying it would be killing someone else? Really, this is quite incoherent.

Sheldon Richman - 3/22/2005

Whose rights are violated by this? The husband's? What rights?

Sheldon Richman - 3/22/2005

That's an evasion. It would obviously kill her.

Sheldon Richman - 3/21/2005

Therefore, anyone is free to homestead the right to sustain her and no one may intefere with that activity.

Sheldon Richman - 3/21/2005

If she's a nonperson, would it be okay for husband to shoot her? Bury her alive?

M.D. Fulwiler - 3/20/2005

I believe that almost every state allows unilateral divorce.

And just because a court has found something to be "true," it doesn't make it so. Sheldon is correct that the wishes of Mrs. Schiavo would seem to be less than clear. Why err on the side of death?

John Arthur Shaffer - 3/20/2005

It must be added that many/most Democrats in Washington are reflexively going along with their urge to federalize all things. I am astonished they are not only not going to stop this abuse of power but many will vocally support it. I guess they're so afraid after the gay marriage tsunami. They hear the campaign commercials about standing by as Terri Schiavo was starved to death.

The most courageous politicians have been the Senate Republicans here in Florida. They bravely resisted more sham legislation and many had serious misgivings about their first unconstitutional attempt to change the court's ruling. It's funny that those closest to the constituent understand the proper role of government in this case. Imagine that.

Sheldon Richman - 3/20/2005

Absolutely! I despise those people.

John Arthur Shaffer - 3/20/2005

"Why on earth hasn't Michael Schiavo simply divorced Terri?"

Can she consent to a divorce? Does he have the authority to divorce her unilaterally?

Regardless, a court has found by clear and convincing evidence that her intent would be to have the feeding tube removed. I don't see a way that this court's decision can be undone given it has already been the subject of extensive appeals.

Sheldon Richman - 3/20/2005

We criticize the law (legislation) all the time, don't we? The judge likely acted in good faith under the law as it is written. Perhaps it should be written differently.

I hardly think it wise to choose one's position by taking the side Dobson is not on. Remember what they say about broken clocks.

Jason Kuznicki - 3/20/2005

Why on earth hasn't Michael Schiavo simply divorced Terri? There are only two logical possibilities involved in a divorce, and either one seems innocuous:

1. Terri is still alive, and Michael is doing the decent thing by divorcing her because he is no longer able to have the kind of relationship he wants with her.

2. Terri is no longer alive, and Michael is going through the motions that are unfortunately necessary before he can get on with his life.

Either way, why does he insist on wanting to pull the plug? It strikes me as more than a little creepy, particularly given how there is no clear statement of Terri's wishes--and how her care is already paid for in any event.

But I do agree with what has been said elsewhere: The attempted abuse of the subpoena power is really chilling, and there are an awful lot of people using this case to prove all sorts of dubious political points. I don't think I've ever seen a death with less dignity than this one.

William J. Stepp - 3/19/2005

Well, the court concluded there was such a statement, as you point out, so your criticism doesn't apply to my general principle, which is the libertarian plumbline, as I see it.
As per Sheldon, I don't see the connection with Randall Terry et al, nor do I see the general libertarian position as indicating a drift toward fascism. Quite the contrary.

As for the government's courts doing their level best, I'm sure they do all the time--like in the O.J. case.

John Arthur Shaffer - 3/19/2005


"Republican officials declared, in a memo that was supposed to be seen only by senators, that they believe the Schiavo case "is a great political issue" that could pay dividends with Christian conservatives, whose support is essential in midterm elections such as those coming up in 2006."

John Arthur Shaffer - 3/19/2005

I don't disagree that the law could (or maybe should) require a living will to avoid a case such as this. What bothers me is the refusal by some to accept that the courts have done their level best to come to this decision. The case has been appealed ad nauseum (at great taxpayer expense) and the conclusion reached is the same.

Now the judge, a Baptist, is under guard due to death threates. Dobson goes on TV and calls the man "wicked". We are going down a slippery slope to theofascism, I'm afraid.

Sheldon Richman - 3/19/2005

Don't be frightened. I'm sure my reasons for the position I take are quite different from Dobson & Co.'s. I also never endorsed what's going on in Congress. I see no grounds for intervention by the central government.

It is true that the lower court judge, in his finding of fact, believed the husband and the one or two others regarding Terri Schiavo's alleged wish not to be sustained by artificial means. (This, however, was disputed.) My point is that the law which allows this is ill-conceived. Something more solid should be requires, namely, an advance directive.

John Arthur Shaffer - 3/19/2005

"In the absence of such a statement, it seems to me that her parents or anyone else has a right to care for her, provided they use only the economic means to do so."

This is simply not what the law states. The court concluded that there was clear and convincing evidence that Terri's wish would have been to not be kept alive with a feeding tube if in a persistent vegetative state. There were corroborating witnesses that supported the husband's position and the medical evidence was overwhelming that her upper brain was dead.

You may not like the result but that's the law. The fact that some libertarians are going along with James Dobson, Randall Terry, and the lynch mob in Congress is downright frightening.

The husband had no "right" to terminate the life support. He simply petitioned the court on her behalf. The parents have NO right to make such a decision.

Sheldon Richman - 3/19/2005

Hear, hear.

William J. Stepp - 3/19/2005

Contrary to Irfan Khawaja, a person in a persistent vegetative state has rights qua person (interests are irrelevant to rights), which can be summed up in one phrase: the right not to be coerced.
Such a person has no right to force anyone else to feed and care for him, however. (The only exception I can think of is if someone has a long-term care contract with a care provider, and the contract has no out provision for the latter.)
Terri Schiavo is like a baby and has the same rights as one. A baby has no right to care from his parents or from anyone else. However, if a baby's parents abandon him, anyone else has a right to step in and provide care to the infant. The difference is that a baby can't say no to such an offer (we assume the baby would want to be saved), unlike an adult who is compos mentis.
Her husband has a right to divorce (or otherwise abandon her), which is what he should do, it seems to me.
Her parents have a right to feed and care for her, if that is consistent with the wishes she expressed when she was compos mentis.
If she had signed a statement saying she didn't want to be cared for, then neither her parents, nor anyone else would have a right to intervene. In the absence of such a statement, it seems to me that her parents or anyone else has a right to care for her, provided they use only the economic means to do so.

Her parents do not have a right to do is extract subsidies from taxpayers to pay for her support.
Nor does Congress have a right to butt in and pass a law (talk about the kind of special interest legislation Hayek warned about in _Con. of Lib._ ) forcing her to be fed.

Sheldon Richman - 3/19/2005

Further thought: What's the difference between a former person (non-person) and a severely impaired person? Does the desired disposition dictate which term we use? Language is often more prescriptive than descriptive.

Sheldon Richman - 3/19/2005

The husband's statement about her wishes are suspect, as I noted in the original post. In a matter such as this, a signed document ought to be required. We don't know if she said she wanted no artificial support. If she said it, we don't know if it was an off-hand remark or if she retracted it the next day. All we have is the husband's late-in-the-game assertion, not proof. His other conduct creates suspicion that he is not telling the truth.

She has interests in the sense that she is a living being. She can breathe on her own. The concept of interests presupposes the concept of life.

Since she is alive, Michael Shiavo is still married to her. He is not divorced, and obviously he is not a widower. But he wants to get married to his "fiance," thus his interest in seeing his wife's life end. That looks like a conflict.

If, as you say, she is a nonperson, then her husband can no longer be her guardian. But then how can he legally stop her parents from feeding her?

I am not arguing that Terri Shiavo has a right to care. I am arguing that Michael Shiavo has no right to stop others from administering it.

Sheldon Richman - 3/19/2005

If Michael Shiavo wants to stop having Terri Shiavo fed and hydrated, he should be free to do so. But if someone else wants to step in and provide life-support, by what right does Michael Shiavo interfere? None at all.