Theresa Marie Schiavo died on March 31, 2005, at about 9:00 a.m. It is unlikely that she ever could have imagined the truly bizarre events surrounding her passing from this world. Indeed, when we first conceived of a conference and symposium concerning the Schiavo case, we certainly did not have any conception of the twists and turns the matter would ultimately take. In the years leading up to her death, Terri Schiavo’s situation was discussed and debated at every level of the federal and Florida State governments. The legal and political saga surrounding Terri Schiavo’s death was simply extraordinary and beyond prediction.
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I have twenty minutes to discuss the implications of the Schiavo case!1 I think it’s fair to say that in taking this case, when Mr. Schiavo walked into my office eight years ago, I wouldn’t have had the slightest idea that I’d now be standing up here while the case was still pending, talking about it.
I don’t want to talk too much about the specific details of the Schiavo case. Instead, I’ll focus on its broader trends and implications. My entry into the Schiavo case was through the Browning case, which many of you may be familiar with, which is Florida’s landmark right-to-die or right-to-refuse-unwanted-medical-treatment case, a case that I argued before the Florida Supreme Court in the late 1980s.
As we look at the case of Terri Schiavo, we are dealing with some far bigger issues, quite candidly, than whether someone wants medical treatment or wants to refuse medical treatment. Let me begin by laying out a factual backdrop because I think the facts are a very large component to understanding the Schiavo case.
Number one, Terri is as alive as you are. You may be sitting here thinking, “Well, I’ve heard she is on a ventilator; she is being kept alive by tubes, and so on.” But as we sit here today, Terri Schiavo is every bit as alive as you and I.
The central question that really derives out of that litigation is whether the courts have a monopoly on protecting the weak and the handicapped, or whether there is a role for the executive branch and the legislative branch in protecting the frail and the vulnerable in our society against the possibilities of exploitation or neglect.
The Rule in Terri’s Case speaks as much to the substance of the law as it does to the political climate that surrounds it—and does so more expressly, indeed, more openly and notoriously than is often the case in United States jurisprudence. The undercurrent of profound enmity that existed between the husband of a severely brain damaged woman and her parents and siblings combined with political and spiritual timeliness to create a perfect storm for the most volatile and litigated end-of life case in United States history. Make no mistake about it: the
Theresa Marie Schiavo case was about right-to-life and abortion as much as it was about privacy, autonomy, death with dignity, and the rights of family members.
The public’s view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians—one carrying a saw, another an I.V. pole—with the caption, “Coming Soon to a Sickbed Near You . . . [t]he United States Congress.” The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were released, pictures an elephant being examined by two physicians. The elephant says, “I don’t care what the autopsy says! I was right to intervene in the Terri Schiavo case and I’ll do it again if I get the chance.” One physician tells the other, “No hope for recovery.”
The case of Theresa Marie Schiavo aroused the longstanding claim that any judgment that death is preferable to life violates the important concept of sanctity of life. Right-to-life advocates largely chose to ignore the judicial finding that Terri Schiavo had, by oral expressions, dictated her own medical course. Instead, they portrayed her husband’s determination to let her die as reflecting his judgment that her impoverished quality of life in a permanently unconscious state had “no value.” In turn, the Florida courts’ acceptance of such a determination supposedly contravened society’s respect for the intrinsic value of all human life. This theme—that a quality-of-life ethic undermines sanctity of life—has long been a contention of right-to-life advocates. In 1987, one judge objected to the removal of life support from a permanently unconscious person . . .
Karen Ann Quinlan and Theresa Marie Schiavo are names tied to legal controversies over the withdrawal of medical treatment at the end of life. In re Quinlan arose at a time when the rules for decisionmaking for incompetent patients were still unformed and inchoate. It set the framework of analysis for most of the subsequent development in the field.
Schiavo, on the other hand, arose over a dispute about the application of those rules. In the end, the case of Terri Schiavo will have contributed little to end-of-life law, but it will be remembered because of the bitter battle that erupted between her husband and her parents over whether her feeding tube should be removed and the extraordinary efforts of Florida and then national politicians to overturn a judicial ruling in a pending case.
The Schiavo controversy began as a routine case of stopping treatment on a patient in a permanent coma and then metastasized into the Bleak House3 of medical-legal jurisprudence. Although there are many stories to tell about the case, I will focus on only two. One is the state of the law concerning proxy decisionmaking for incompetent patients. The second is what the politicization of the case by right-to-life and disability-rights groups portends about future controversies at the end and at the beginning of life.
One disconcerting aspect of the Schiavo saga was the sense of déjà vu. Is the nation destined repeatedly to watch as a young woman in a persistent vegetative state endures judicial analysis to determine whether her life-sustaining treatment may be withdrawn despite state interference? More troubling still is the inescapable question whether such issues, which once seemed settled legally, will ever be resolved.
More than fifteen years elapsed between the date Theresa Marie Schiavo suffered a cardiac arrest, leaving her in a persistent vegetative state because of brain damage, and the date she took her last breath. The conflict between her parents and her husband regarding her medical care lasted for more than twelve of those fifteen years. The litigation over her care lasted for more than six. It is difficult to keep track of the multiple court cases filed, let alone to pinpoint the highlights of their many twists and turns. It may be possible, however, to predict how the aftereffects of the Schiavo maelstrom will impact the law of end-of-life decision-making in Florida. It appears as if those lingering effects will be bitter and may leave important rights of self-determination and privacy in a battered state, much as hurricanes ripping through Florida leave her shores.
In this Essay, I will dissect the history of the Schiavo cases to determine their implications for the law of end-of-life decision-making in Florida. Relying on others who have preceded me to set the stage, I will presume that the reader knows the identities and positions of Theresa Marie (Terri) Schiavo; her husband, Michael; and her parents, Robert and Mary Schindler. Against that background, I first will explain that about three years into the Schiavo litigation, the Schindlers significantly changed their focus. A relatively straightforward dispute about proxy decisionmaking then metamorphosed into a political furor, and a debate strikingly similar to those undertaken in hospitals every day thrust an intensely personal family crisis into the national spotlight. The history of the Schiavo cases and the transformation that took place within them provide direct links to the second portion of this Essay, for the long-lasting effects of these cases stem almost exclusively from arguments advanced and actions taken after that transformation. Because of the forces pushing the cases along since that time, Floridians will see lingering effects in their state law of end-of-life decision-making.