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Terri Schiavo’s death may be catalyst for review of federal & state end-of-life laws

NASHVILLE, Tenn. (BP)–The passing of Terri Schiavo likely won’t be the last of the debate over end-of-life issues. In fact, it may only be the beginning.

Schiavo’s case, her supporters say, highlighted problems in both federal and state laws that allowed the 41-year-old brain-damaged woman to die of starvation in spite of an extraordinary effort by Congress to keep her alive.

“Given the nature of this tragedy, I think we have a duty as a society to bring good out of this terrible evil that has occurred,” attorney Ken Connor, who lobbied Congress to pass the bill that President Bush signed into law, told Baptist Press.

“The handicapped have complained for years that they are not treated as whole people and that they don’t receive the benefit of the law. The Schiavo case is exhibit A to that. We have starved a woman to death because she didn’t measure up to somebody’s subjective standard of perfection.”

The Schiavo law gave her parents — who wanted their daughter kept alive — the ability to take their case to federal court, where a judge would have conducted a “de novo” review, considering new evidence and new witnesses. (De novo is Latin for “anew.”) Such a hearing would have taken months and would have required the re-insertion of the feeding tube. But the federal courts refused to reinsert the tube, and Schiavo died March 31 — 13 days after the tube was pulled.

Those who want to see the law changed hope to receive bipartisan support.

The Schiavo bill — despite the characterization — was not a partisan effort. It had support from nearly half of the House Democrats who were present, and also had the backing of several prominent Senate Democrats — most notably Iowa Sen. Tom Harkin. Harkin, in fact, favored an even broader bill that would have covered all cases like Schiavo’s. He released a statement March 19 saying he would continue to work with senators on “both sides of the aisle” to pass such legislation. Similarly, Rep. James Sensenbrenner, R.-Wis., said he favors a law to “ensure others with disabilities do not receive the same treatment.”

Connor, who represented Gov. Jeb Bush in a similar effort in Florida to keep Schiavo alive, said federal and state legislators should consider changing three aspects of the law that led to Schiavo’s death by starvation. Among the proposed changes:

— Ensuring that cases similar to Schiavo’s receive a full de novo hearing in federal court. Cases would be heard in federal court only when there is a disagreement about the patient’s wishes.

“I think we need to go right back to the original bill that was proposed, which would assure that if you’re an incapacitated person who has no prior written advance direction and you are the subject of a court order — either directing or authorizing withdrawal of nutrition and hydration which is going to result in your death — then you would be afforded the same rights of review that people on death row get,” Connor said.

The bill, Connor said, must have guarantees so as to prevent the courts from denying a de novo request.

“The federal courts thumbed their nose at the Congress [in the Schiavo case],” Connor said. “We need to make sure that that doesn’t happen, and we need a carefully crafted bill that will not only allow for federal court review but would require federal court review under certain limited circumstances.”

— Reviewing guardianship laws. Schiavo’s husband, Michael Schiavo, was allowed to remain as her guardian despite the fact that he lived with another woman by whom he had fathered two children. Such changes can and should occur on the state level, Connor said.

“Spouses normally get the benefit of the preference in law because of the marriage relationship. That’s a good policy, I think,” Connor said. “… The preference of a spouse comes by virtue of the marital relationship. If that person demeans or diminishes the marital relationship by their behavior, should they continue to enjoy that preference? And doesn’t that kind of activity give rise to an inherent conflict of interest that ought to disqualify the guardian spouse?”

— Examining how feeding tubes are viewed in end-of-life issues. State legislators, Connor said, should consider requiring a written request for a feeding tube to be pulled.

Florida law allows oral evidence in end-of-life decisions; Michael Schiavo said his wife would not have wanted to be kept alive. But no written directive existed. Connor asserts that state law is inconsistent because it requires financial contracts to be done in writing but allows end-of-life issues to be decided on oral statements.

“If we require writings in those instances, should we not consider requiring [a written statement] in a case that has even more significance and vastly greater implications for the person who is the subject of it?” he asked.

Connor, who serves as chairman of the Center for a Just Society, worries about the implications of the Schiavo case on others.

“This precedent that we see in Terri’s case really should sound alarm bells for the elderly and the handicapped,” he said. “Think about some of the attitudes that have been expressed here — ‘A person who is not self-aware is really not a person and not entitled to constitutional protections’; ‘If the method of death is painless, it’s OK to use a lethal measure to solve a problem’; ‘If someone has no hope of recovery … death is a satisfactory solution.'”

The same arguments used to argue for Schiavo’s death could be applied to the elderly and the disabled, Connor said.

“Those are premises that jeopardize most people in nursing homes,” he said. “And I think Congress needs to take a very careful look at what is happening in our nursing home system around the country.”

The number of people over the age of 80 is expected to double during the next 30 years, Connor said, and the federal government funds much of the medical care for elderly Americans. Connor represents victims of nursing home abuse.

“The pressures on Medicare and Medicaid financially are much greater than on Social Security,” he said. “What that indicates is that we have a tsunami coming in the future — all of which is influenced by the kinds of attitudes you heard expressed during Terri Schiavo’s case.

“… What’s going to be the solution? Are we going to deprive them of food and water, too? … People do not realize the magnitude of the problem. We have a failed system of institutional care in this country, and we are headed really for a cataclysm.”

    About the Author

  • Michael Foust