An intolerable dilemma

"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," writes James Q. Wilson, author of The Moral Sense, in a Wall Street Journal essay on the medical and moral dimensions of Terri Shiavo's life and death that is informed, thoughtful and generous to all parties, including the much-maligned Michael Shiavo. Because the article is available to subscribers only, we offer extended excerpts for our readers. Regarding her medical condition:

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.

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.

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.

And re the moral dilemma:

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.

Finally, some important thoughts re living wills:

Scholars have shown that we have greatly exaggerated the benefits of living wills [which] 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.

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).

Wilson's arguments are compelling and thought provoking, even for those, like ourselves, who are strong supporters of the intolerable-life argument.

Comments

[Dick Pankopf]

Your essay ignores the only relevant issue in the Terri Schiavo case and that is her Constitutional right to reject life prolonging medical treatment. The Florida State Courts have adjudicated this specific legal issue weighing evidence submitted by both sides and concluding that Terri would have wanted feeding tubes removed. I am shocked by the hypocracy exhibited by the "Right" in this case. Reason and logic have been abandoned. Rationalization and emotion reign. The latter are usually the script of the "Left".

[Tom Maguire]

Good job of presenting both sides (and as soon as you pick one, half of us will swoop...).

I wonder if we could get 99% of your readers to agree that this case does illustrate the truism that bad cases make bad law? Even the NY Times has admitted that this is hardly the ideal case for "right to die" advocates to rally around.

[Conrad]

Excellent posting, thanks very much. I am always amazed at the ghoulishness of those who want to kill Ms. Schiavo at their earliest convenience.

[Jamie]

Dick Pankopf: The question I have concerning Mrs. Schiavo's right to reject treatment is twofold. First, how strong is her husband's/guardian's case that she would indeed reject treatment? I've heard that it's his uncorroborated hearsay and not all that compelling, which is not surprising considering her youth - I know I wasn't thinking about my right to reject treatment in my middle twenties. Further, he has some pretty strong motivations for producing the hearsay, which it seems to me could affect the strength of the case. And second, for right or wrong, she's been allowed to continue in this state through many medical advances that change the picture of whether "medical treatment" (i.e. the feeding tube that was originally intended to keep her from choking on food and drink: I understand some therapists say that advances in therapy have made it possible for at least some people who could not swallow to do so in the past decade) is even necessary for her continued life; given that, is it right to evaluate her quality of life based on decade-old standards?

If Michael Schiavo contends that Terri's parents simply haven't been able to "let go" of her after this long, he's failing miserably to give them any reason to do so. By denying them any ability to have her evaluated by docs of their choice rather than his, he only fuels their suspicions that he doesn't have her best interests, but rather his own, at heart. By requesting and being granted the right to have her cremated after her death, over her family's specific request that she not be cremated or interred until her body has been examined, again he fuels suspicions about his motives. He could be pure as the driven snow and entirely concerned only with Terri's dignity, but his behavior exposes him to utterly predictable and understandable criticism: where does he get off being surprised by it?

In short, if he's confident in the PVS diagnosis, he has nothing to lose by allowing Terri's parents to have her examined and tested. If he's wrong, her family has already practically begged to take over her guardianship - and if she's NOT in a PVS, he has no reasonable basis for wanting her feeding tube removed, so it seems to me he'd be wise to consider their request.