Interesting take on the situation from James Q. Wilson in today’s WSJ editorial section:
By JAMES Q. WILSON
March 21, 2005; Page A16
Terri Schiavo is not brain dead as far as anyone can tell. If you are brain dead, you have suffered an irreversible loss of all functions of the brain. If agreed to by at least two physicians, that means you are legally dead, such that your organs can be harvested to help other people.
Instead, Ms. Schiavo is in what many physicians call a “persistent vegetative state” (PVS). That means that she lacks an awareness of her self or other people, cannot engage in purposeful action, does not understand language, is incontinent, and sleeps a lot. To be clinically classified as being in a PVS, these conditions should be irreversible. But from what we know, some doctors dispute one or more of these conditions and believe that it is possible that whatever her symptoms, they are not irreversible.
Her condition is hardly unique. In 1995, when the American Academy of Neurology published its report on people in a persistent vegetative state, it found that there were as many as 25,000 adults and 10,000 children in this country who suffered from PVS. Based on the best studies the Academy could find at the time, some adults in a vegetative state 12 months after a devastating injury or heart failure could recover consciousness and some human functions. The chances that such a recovery will occur are very small, but they are not zero.
If they are not zero, then withdrawing a patient’s feeding tubes and allowing her to die from a lack of water and food means that whoever authorizes such a step may, depending on the circumstances, be murdering the patient. The odds against it being a murder are very high, but they are not 100%.
Many people, myself included, have allowed life-support systems to be withdrawn from parents who have no hope of recovery. My mother was going to die from cancer, and after all efforts had been made to help her, my sister and I allowed the doctors to withdraw the devices that kept her alive. She was dead within hours.
My case, and that of countless other people who have made that decision, differs from that of Terri Schiavo in two important ways. First, the early death of my mother was certain, but no one can say that Ms. Schiavo will die soon or possibly at any time before she might die of old age. Second, all the relevant family members agreed on the decision about my mother, but family members are deeply divided about Terri.
These differences are of decisive importance. When death will occur soon and inevitably, the patient does not starve to death when life support ends. Since there was no chance of our mother living more than a few more days, what my sister and I did could not be called murder. When death will not occur soon, or perhaps for many years, and when there is a chance, even a very small one, that recovery is possible, people who authorize the withdrawal of life support are playing God.
And in Terri’s case, they are playing God when they do not have to. Her parents have begged to become her guardians. Her husband has refused. We do not know for certain why the husband has refused. I doubt that he wishes to receive for himself the money that still exists from her insurance settlement and, apparently, he has offered to donate that money to charity. Perhaps, being a Catholic, he would like her death to make him free to marry the woman with whom he is now living. Or perhaps (and I think this is the most likely case) he does not want his wife to live what strikes him as an intolerable life.
The intolerable life argument has support from many doctors and bioethicists. They claim that a person can be “socially dead” even when their brains can engage in some functions. By “socially dead” they mean that the patient is no longer a person in some sense. At this point their argument gets a bit fuzzy because they must somehow define what is a “person” and a “non-person.” That is no easy matter.
By contrast, physicians have unambiguous ways of determining whether a person is brain dead. This means that brain death is a very conservative standard and, if it errs, it errs on the side of preserving life.
Some people believe that all of these issues can be resolved if everyone signs a living will that specifies what is to be done to them under various conditions. The living will is supposed to determine unambiguously when a “Do Not Resuscitate” sign should be placed on a patient’s hospital chart. Terri Schiavo had not signed a living will. If she had, we would not be facing these issues.
But scholars have shown that we have greatly exaggerated the benefits of living wills. Studies by University of Michigan Professor Carl Schneider and others have shown that living wills rarely make any difference. People with them are likely to get exactly the same treatment as people without them, possibly because doctors and family members ignore the wills. And ignoring them is often the right thing to do because it is virtually impossible to write a living will that anticipates and makes decisions about all of the many, complicated, and hard to foresee illnesses you may face.
For example, suppose you say that you want the plug pulled if you have advanced Alzheimer’s disease. But then it turns out that when you are in this hopeless condition your son or daughter is about to graduate from college. You want to see that event. Or suppose that you anticipate being in Terri Schiavo’s condition at a time when all doctors agree that you have no chance of recovering your personhood and so you order the doctors to remove the feeding tubes. But several years later when you enter into a persistent vegetative state, some doctors have come to believe on the basis of new evidence that there is a chance you may recover at least some functions. If you knew that you might well have changed your mind, but after entering into a PVS you can make no decisions. It is not clear we would be doing you a favor by starving you to death. On the contrary, we might well be doing what you might regard as murder.
There is a document that is probably better than a living will, and that is a durable power of attorney that authorizes a person that you know and trust to make end-of-life decisions for you.
Terri Schiavo’s case could be decently settled by a judge who recognizes that there is some small chance of recovery and that several family members are willing to take responsibility for managing that process in hopes that a recovery of even small human features will occur. The judge in Florida ignored this and ordered her feeding tubes removed. The Florida appellate courts have not stayed his hand, and the U.S. Supreme Court, perhaps for want of jurisdiction, has not intervened.
This is a tragedy. Congress has responded by rushing to pass a law that will allow her case, but only her case, to be heard in federal court. But there is no guarantee that, if it is heard there, a federal judge will do any better than the Florida one. What is lacking in this matter is not the correct set of jurisdictional rules but a decent set of moral imperatives.
That moral imperative should be that medical care cannot be withheld from a person who is not brain dead and who is not at risk for dying from an untreatable disease in the near future. To do otherwise makes us recall Nazi Germany where retarded people and those with serious disabilities were “euthanized” (that is, killed). We hear around the country echoes of this view in the demands that doctors be allowed to participate, as they do in Oregon, in physician-assisted suicide, whereby doctors can end the life of patients who request death and have less than six months to live. This policy endorses the right of a person to end his or her life with medical help. It is justified by the alleged success of this policy in the Netherlands.
But it has not been a success in the Netherlands. In that country there have been well over 1,000 doctor-induced deaths among patients who had not requested death, and in a large fraction of those cases the patients were sufficiently competent to have made the request had they wished.
Keeping people alive is the goal of medicine. We can only modify that policy in the case of patients for whom death is imminent and where all competent family members believe that nothing can be gained by extending life for a few more days. This is clearly not the case with Terri Schiavo. Indeed, her death by starvation may take weeks. Meanwhile, her parents are pleading for her life.
Mr. Wilson has taught at Harvard, UCLA and Pepperdine and is the author of “The Moral Sense” (Free Press, 1997).