Too Much To Dream

i think if she's brain dead (not comatose, or retarded) then she's pretty much dead already. I doubt she's suffering. Nobody wins in this situation, especially not Terri, who is never coming back...

Right on, Andrea! I get tired of the people who would like to kill off those whose existence makes them uncomfortable. I have no problem with turning off a heart-lung machine keeping someone nominally alive, but starving a person to death is, as you note, a very cowardly way to kill a person.

As for brain death -- obviously her brain isn't completely dead, otherwise her heart wouldn't be beating and her lungs wouldn't be working. The lungs and the heart do not move of themselves, you know.

Another "me too"...

Right on. The whole "we're not killing, we're letting nature take it's course" thing is pretty stupid. And the husband is an ass who should have his custody revoked.

Bolie IV

I’ve never understood why letting someone starve is supposed to be the ‘humanitarian’ thing to do, but then again I’ve never understood why letting dictators steal food from the hungry and peacefully allowing genocide to happen is supposed to be the ‘humanitarian’ alternative to war. I guess I just don’t understand this whole humanitarian thing.

You’re right, this has nothing to do with our wants and needs. If Terry didn’t leave a living will, then maybe that was her decision. According to this article, there’s a lot more going on in coma patients’ heads than we knew about before.

As an aside, the Schindlers (Terri's parents) have offered to care for Terri completely, granting her husband a divorce and taking any and all medical expenses on themselves.

So far Mr. Schiavo has refused.

Makes you wonder what he's got against his wife that he wants to see her dead so badly.

Andrea Harris writes:

If you are really concerned, do what Terri Schiavo apparently didn't and put it in writing, and have it notarized in front of witnesses. We don't allow oral agreements to take precedent over written ones in mere business deals...

Florida law is pretty clear that putting an advance directive in writing is not required, and that a surrogate (usually the surviving spouse) can make decisions for incapacitated patients, subject to challenge by interested parties on the ground that the patient's wishes would have been different. Maybe Florida law should provide differently, but it doesn't.

As for written agreements taking precedence over oral agreements in business cases, it is true that a written agreement trumps a prior oral agreement, and that there is a small category of contracts that must be in writing (mostly contracts for interests in land). In all other respects, oral contracts are fair game.

meep writes:

I have no problem with turning off a heart-lung machine keeping someone nominally alive, but starving a person to death is, as you note, a very cowardly way to kill a person.

What, in your view, is the moral difference between these two cases?

The finding of the court was that Terri Schiavo does not want to have her life sustained in this condition through artificial means. In accordance with that finding, and her constitutional right to refuse life-sustaining medical treatment, the court ordered the feeding and hydration tubes removed. The Florida legislature is trying to do an end-run around this ruling, but it seems likely that that effort will fail and that the order to remove the tubes will be reinstated, as it should be.

Do you really believe that the state should have the power to force people to have tubes and wires inserted into their body, and drugs pumped through their veins, to sustain their lives against their express wishes?

Re: Ken. No, I do not think the state should have the power to force these things "against their express wishes." The problem here is that Terri's husband didn't seem to recall her
"express wishes" until AFTER he made an impassioned plea to the jury in the malpractice case and was awarded a sizable amount of money for her rehabilitation and himself. And despite his deep love and concern for his wife, he is shacking up with another woman and having children with her. Something is wrong with this picture.

"The finding of the court was that Terri Schiavo does not want to have her life sustained in this condition through artificial means."

And the finding of an even higher court was for a "woman's right to privacy" which has now resulted in near 50,000,000 deaths of citizens who just might have offered much improvement to our way of life. So much for court activism.

"Do you really believe that the state should have the power to force people to have tubes and wires inserted into their body, and drugs pumped through their veins, to sustain their lives against their express wishes?"

What does that have to do with this specific case where this simply maintained means of food and water has been part of this woman's life for somewhere like 13 or so years? It's become part of her daily life and when she was told bluntly by a therapist that she had to give all the effort she could or they would take it from her and she wouldn't get out of there alive, her reaction told everyone just what her wishes were!

Rose:

Re: Ken. No, I do not think the state should have the power to force these things "against their express wishes." The problem here is that Terri's husband didn't seem to recall her
"express wishes" until AFTER he made an impassioned plea to the jury in the malpractice case and was awarded a sizable amount of money for her rehabilitation and himself. And despite his deep love and concern for his wife, he is shacking up with another woman and having children with her. Something is wrong with this picture.

So if you were persuaded that Terri really does wish to refuse nutrition and hydration you would agree that the tubes should be removed, right? You agree that a person should not be forced by the state to receive life-sustaining nutrition and hydration against her will, right?

If so, then all this other business Andrea Harris raises in her post is irrelevant, and the only real issue here is Terri's wishes.

I am not persuaded that you are in a better position to determine those wishes than courts of law that have been examining and reexamining the case for 13 years, despite your suspicions about Michael Schiavo's motives.

Chris Kelly:

What does that have to do with this specific case where this simply maintained means of food and water has been part of this woman's life for somewhere like 13 or so years?

It has to do with the nutrition and hydration tubes that are sustaining Terri Schiavo's life. Do you think the state should have the power to force a person to receive life-sustaining nutrition and hydration against her will? It's a simple question. Yes or No? As a matter of established constitutional law, the state does not have that power.

I just thought I'd mention that this morning my life support consisted of fruit juice and a big bowl of cereal. A little while ago I had sandwiches for my mid-day life support. Some old-fashioned people such as pro-lifers, oops, I mean anti-abortion people, and disability rights people would say I had breakfast and lunch, but according to the people trying to dispose of Terri Schiavo now that she's a useless eater, it was life support.

Incidentally, many of the people who have been permitted to see her say she is not brain dead.

I have seen the videos of Terri Schiavo. She is not a "vegetable." Terri did not require any kind of complex or intrusive medical care to sustain her on a feeding tube. In fact she can probably be cared for at home. If we assume that the court has applied the law correctly in this case - a big assumption - then there is a problem with the law, a problem that called for immediate action on the part of the governor and the legislature. If anything they were slow to act. This is nothing but the system of checks and balances at work.

Terminating medical care in such cases (a feeding tube is medical care?) should require a written document that would be interpreted narrowly. This case illustrates why. Also, the judgment that a person is in a vegetative state should require a consensus of medical opinion - something which does not exist in this case.

Finally, would Terri want to die? In fact, severely disabled people want to live as long as they are not abandonned by their families but are cared for with loving attention to their needs. The Schindlers obviously are willing and able to do that.

Anyone who says "I wouldn't want to keep on living like that" is really saying two interrelated things: "I am unwilling to assume the responsibility of caring for anyone else in these circumstances" and "I don't think anyone will want to take care of me if I am weak and helpless."

"The finding of the court was that Terri Schiavo does not want to have her life sustained in this condition through artificial means." And wasn't it the finding of that same court that she is in a Persistent Vegetative State, no matter that anybody with a TV can see that she most certainly is not?

Marg Helgesen:

I have no idea what your first point is supposed to be. If you like, instead of calling what Terri is receiving "life sustaining nutrition and hydration" we can call it "life-sustaining food and water" or just "food and water," instead. How does that change anything?

As for Terri's mental condition, the finding of the court, after extensive expert medical testimony, is that she is in a persistent vegetative state, or a condition so close to that state that she has absolutely no chance of recovery. Again, I see no reason to accept the claims of those with no medical expertise over the conclusions of the court.

Is there some point at which your second-guessing of the courts' findings will end, or will no amount of evidence, no amount of review and re-examination, ever satisfy you?

Sorry, that should be "Marty" not "Marg" (must have been thinking of Marg Helgenberger).

Charles Williams says:

Anyone who says "I wouldn't want to keep on living like that" is really saying two interrelated things: "I am unwilling to assume the responsibility of caring for anyone else in these circumstances" and "I don't think anyone will want to take care of me if I am weak and helpless."

Charles, do yourself a favor and avoid a career as a mind reader. You do it very badly.

Charles Williams:

Terminating medical care in such cases (a feeding tube is medical care?) should require a written document that would be interpreted narrowly.

As alkali has already noted, there is no such requirement in Florida law.

But if there were such a written document in this case, would you agree that the tubes should be removed, or do you think Terri should be forced to receive nutrition and hydration against her will?

Finally, would Terri want to die? In fact, severely disabled people want to live as long as they are not abandonned by their families but are cared for with loving attention to their needs.

I'm not sure whether you intend to include Terri in that category of "severely disabled people," but you obviously cannot speak for other people, disabled or otherwise. The fact that many people have created living wills explicitly stating that they do not wish to receive life-sustaining medical treatment if they fall into a persistent vegetative state demonstrates that many people would rather die than be kept alive by tubes and machines in that condition.

Alkali: More or less true, but: Parol evidence rule.

Ken: Spend enough time litigating in front of Florida courts, especially the probate ones, and you'd have a pretty jaundiced idea about the kind of position it is from which those judges make their "findings of fact." (As a colleague told me, he once offered to an appellate judge, informally, that the reason they're called "Findings of Fact" is because, dang it, it took the court some serious time to find those facts -- they'd been hidden so very well.) There are some great judges in Florida, some mediocrities, and some pretty danged lousy ones. So, with due respect, I suspect that most of the posters here "are in a better position to determine those wishes than courts of law that have been examining and reexamining the case for 13 years."

Oh, and quick: Since Terri herself isn't demanding the end of the feeding tubes, and there is no definitive proof that this faithful Catholic asked for exactly that, how are her Constitutional rights being abridged, exactly? If, as you suggest, she is indeed a vegetable, then she's not "there." It's just a piece of living flesh, with no mind behind it; that mind is what has rights. Absent such a mind, a breathing corpse has no rights to violate.

It's the moving that does it. People see her moving and think, as Andrea put it , 'tard.

But what I'd like to see is the EEG, the brainwave patterns. THAT'S how you tell if there's any forebrain activity going on.

What happened when they removed the tubes?

All kinds of questions.

I'm a libertarian atheist, and I voted for Oregon's assisted-suicide law.

At the same time, I'm all for keeping Mrs. Schiavo alive, since there's no evidence (to my knowledge) she wanted to be let die, apart from her husband's word.

Ken: The "extensive expert medical testimony" was, strangely, not unanimous, was it? In fact, accounts I've read indicate that Mr. Schiavo's doctors disagreed with those her parents brought in. That the court decided one way or the other between the two, barring a finding of actual fraud or misconduct, has no power of Truth, merely power of Law.

As I've argued many a time on other blogs, given the disagreements and varied testimonies, the possible conflicts of interest, the care fund (which means neither Mr. Schiavo nor hte State will be burdened by keeping Mrs. Schiavo alive), and the lack of a clearly and uncontestedly stated desire on her part to be let die, it seems to me that it hurts little to nothing to keep her alive until more determinations can be made as to her state, and it would be a grave injustice to kill her in these circumstances.

I'm all for people's "right to die" - but I'm not for that right's execution being seemingly imposed on people who have not expressed such a desire (except to a single person who has much to gain from their death - even if he is telling the truth, prudence suggests we ought to consider the contrary as possible).

Ken,

You might want to check out the allegations made that the 'court-appointed' doctor who made the PVS prognosis had some sort of connection to her husband's infamously creepy right-to-starve-to-death attorney, George Felos.

We don't know if these allegations are true because Judge Greer won't allow an investigation to take place. We don't know if allegations of abuse are true because no one will investigate. We don't know whether Mr.Shiavo stands to gain something financial from Terri's death because he won't disclose his insurance policies. We don't know anything, except that since winning an incredible amount of money ostensibly for medical care, Terri's 'husband' (he's already broken most of his vows) has allowed absolutely no attempts at rehabilitation to be made. So we also don't know whether she could be spoonfed (she swallows her own saliva, so it seems likely) and whether she could be able to make a partial recovery, as so many other brain-damaged patients have.

But I would rather find out the truth of these things before a woman is slowly and painfully starved to death. (Starvation sucks, even for the semi-concious). Criminals on death row get more chances and more mercy than this woman, whose only crime was to marry an asshole.

Anrea observes:

It is also interesting how all these libertarian atheist euthanasia supporters suddenly seem to believe in something approximating a soul, since they are so so sure about what Terri thinks and feels, as if there is some sort of "Terri" separate from her physical body that is trapped like a rat in a coffee can and just wants to be "set free" by having the body killed.

Yet this is precisely what her "hubbie's" New Age laywer George Felos, the one who has been spearheading the Let's Show Terri to the Exit move, seems to believe. Felos also considers himself a "mystic" possessing the ability to communicate with the souls of comatose patients.

For example:

"...As I always did, I looked into her eyes and shouted to her, hoping for some response or sign. After a minute or two I sat in the chair by the foot of her bed, closed my eyes, and started to meditate. Having 'soulspoken' with Mrs. Browning when we first met, I decided, with a measure of earnest self-inflation, to purposefully initiate such contact. I settled into my breath and noticed all the passing sounds move through my consciousness. As I deepened my relaxation, I reached out with my awareness to see if I could touch her soul-presence. From deep inside I repeated, 'Mrs. Browning, it's okay to leave your body. There is no reason to stay in this body. It is all right to die now.' A few minutes into my meditative encouragement, I was jarred by a high-pitched sarcastic cackle and the words, 'You're telling me to drop my body – and you can't even get out of your head.' Apparently, Mrs. Browning had a spirited sense of humor!"

--p. 216, George J. Felos, Esq., Litigation As Spiritual Practice (2002; Blue Dolphin Publishing)

Mr. Felos, based on other equally preposterous statements in his book and to the press, seems intent upon "freeing" the souls of anyone and everyone who is "imprisoned."

IMO, "libertarian atheist euthanasia supporters" that may not be the real problem, but rather statist Gnostic euthanasia activists.

Thomas:

Ken: Spend enough time litigating in front of Florida courts, especially the probate ones, and you'd have a pretty jaundiced idea about the kind of position it is from which those judges make their "findings of fact." (As a colleague told me, he once offered to an appellate judge, informally, that the reason they're called "Findings of Fact" is because, dang it, it took the court some serious time to find those facts -- they'd been hidden so very well.) There are some great judges in Florida, some mediocrities, and some pretty danged lousy ones. So, with due respect, I suspect that most of the posters here "are in a better position to determine those wishes than courts of law that have been examining and reexamining the case for 13 years."

Your suspicion seems to me wildly implausible. Whatever the failings of the Florida court system, it seems highly unlikely that they are so bad as to make the conclusions of such an extensive and lengthy judicial process less reliable than the suspicions and feelings of a group of blog posters whose information on the case comes from media reports, personal websites and the like. Do you also believe that blog posters are in a better position to decide evidentiary matters than the courts themselves in all other Florida court cases, or is it just this one?

Since Terri herself isn't demanding the end of the feeding tubes, and there is no definitive proof that this faithful Catholic asked for exactly that, how are her Constitutional rights being abridged, exactly?

The finding of the court is that Terri wishes not to have her life sustained in this way. The Supreme Court has ruled that she has a constitutional right to refuse such life-sustaining care. That is how her constitutional rights are being violated. And the standard of review in such cases is not "definitive proof." The standard of review in matters of law is never "definitive proof."

If, as you suggest, she is indeed a vegetable, then she's not "there." It's just a piece of living flesh, with no mind behind it; that mind is what has rights. Absent such a mind, a breathing corpse has no rights to violate.

The Supreme Court has ruled otherwise. A person has a right to refuse life-sustaining medical care. This includes persons who are in a persistent vegetative state, such as Terri.

Warning: of interest to almost no one.

Thomas writes:

Alkali: More or less true, but: Parol evidence rule.

True. Hence my use of the word "prior." Written agreements may be modified by subsequent oral agreements.

Um, I'm one of those "libertarian atheist euthanasia supporters" and my basic feeling is we don't have nearly enough evidence to make a decision as to her wishes, so we should err on the side of her life. I'd roll out from under the blanket accusation, but, baby, it's cold outside.

Ken: Why does Mr. Schiavo not divorce his wife? He has a girlfriend, one child by her already, another on its way — heck, as I understand it they're formally engaged, which is a little creepy, frankly.

Terri Schiavo had been in more or less her current state for three years when her husband won a large settlement to pay for her "perpetual care." If he knew then that she would not like to live like this (and since no written directive from her has come to light since, and she can't speak for herself now, what he knows about her wishes now is exactly what he knew then), why did he do that?

Strongly agree with Andrea on this one. The only circumstance I can think of where the actions of the husband make any sense whatever is that he and his wife had talked this over in detail, agreed on a course of action and then promptly failed to make up a Living Will, or whatever to ensure that her wishes would be met. That's the only charitable explanation, rather; I can think of a few uncharitable ones, but they're along the lines of what's already been put forth.

Sigivald:

There is no requirement that the expert medical testimony be unanimous, and the demand that it be unanimous for the court to reach a legitimate finding on Terri’s medical condition would be ridiculous. Courts can and must reach findings on all sorts of evidentiary matters in the absence of unanimous agreement amoung expert witnesses. But in this case, as alkali has reported elsewhere, the appeals court found that “The only debate between the doctors is whether [Terri] has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex." None of the doctors testified that she is capable of recovery. None of the doctors testified that she has any kind of higher brain function. Moreover, it is not necessary for Terri’s condition to satisfy the clinical requirements of a persistent vegetative state for her current treatment to be a violation of her rights. The crucial legal question regarding her medical condition is whether that condition is such that she does not want her life to be sustained in the way that it is being sustained. And the finding of the court is that it is.

Regarding the evidence of Terri’s wishes, again, the court has already reached its finding on this matter. There is no requirement in Florida law for a living will or other written document for such a finding to be made. You may not agree with this law, but the fact that you personally don’t agree with it cannot control the ruling of the court. You are free to work to change the law to impose the requirement of a living will for the withdrawal of life-sustaining medical treatment if you think that should be the legal standard. But it isn’t the legal standard, and it is unlikely to become the standard. Even the higher standard in Missouri that was the subject of the Cruzan case was only “clear and convincing evidence” of the patient’s wishes (rather than, say, “proof beyond a reasonable doubt” or “definitive proof” or a notarized document).

Ken: No, the "only" issue is NOT Terri's wishes in this case. Having seen the video's of Terri and her responsiveness, if this is what is considered "comatose" (as many in the media have described her) or a "persistent vegetative state" then it is time to change my own personal directives. Am I in a better position to determine Terri's wishes than the courts? Nope. But even the worst criminal gets to have the "beyond a reasonable doubt" standard before they are executed and I don't think we have that here. Error should be on the side of life. And make no mistake, many courts have made mistakes.

Sigivald:

As for your “has no power of Truth, merely power of Law” comment, again, I just don’t see the point of it. It's like Thomas's demand for "definitive proof." No legal finding ever has “the power of truth” if by that you mean that we know it to be true beyond any doubt. Even the standard of evidence needed to justify the execution of a citizen by the state is only proof beyond a reasonable doubt, not some kind of metaphysically-certain “truth,” which is what you seem to be unreasonably demanding in this case.

And regarding your claim that “it hurts little to nothing to keep her alive,” the harm is that her constitutional right to refuse life-sustaining medical treatment is being violated. That is not a small harm, it is a very great harm, as the violation of any constitutional right is a very great harm. You suggest that “more determinations” should be made regarding her state, but this case has already been litigated for 13 years. At what point will you be satisfied that the legal process has reached its legitimate end, or will you never be satisfied unless it reaches the conclusion that you think it should reach?

Rose:

I think my posts to sigivald address each of the points you mention. As a general comment on what you say, this case has to be decided on the law as it is, not on the law as you think it should be. You cannot substitute your judgment for the legal standards laid down in Florida law. You may believe that "proof beyond a reasonable doubt" of Terri's wishes should be provided before her feeding tube can be removed, but that is not what the law in Florida says.

Ken: Yes, the case has been "litigated for 13 years." But it is striking, is it not, that at the beginning of the 13 years Mr. Schiavo was interested in winning a large sum of money to keep his wife alive, whereas at the end of that period he wants her dead? Once again, he can't possibly know any more about her own wishes now than he did in 1993, and her own condition hasn't altered appreciably, so what explains the difference?

And food and water are not "life-sustaining medical treatment." If feeding someone who cannot feed herself is medical care, then every one of us spent the first couple years of life in medical care.

I do have a question -- are people allowed to voluntarily starve (actually the dehydration kills first) themselves to death? I'm thinking of the anorexics who are involuntarily committed, and feeding tubes are forcibly inserted.

As to the difference between a heart-lung machine and feeding tubes: one generally doesn't consider providing nourishment to a person to be "extreme medical care". Indeed, most of the time, people would consider someone deliberately withholding nourishment from a dependent to be murder. It does not matter the age of dependent -- whether a baby, an old person with Alzheimer's, or a comatose young woman.

I wonder about those who wish death for Terry Schiavo. We will all die one day -- why hurry the deaths of those who would live peaceably otherwise? No one indicates that she's in excruciating pain. Her parents are willing to take care of her. So why are people eager to starve her?

Kate writes:

You might want to check out the allegations made that the 'court-appointed' doctor who made the PVS prognosis had some sort of connection to her husband's infamously creepy right-to-starve-to-death attorney, George Felos. We don't know if these allegations are true because Judge Greer won't allow an investigation to take place.

The independent expert chosen by Judge Greer, Dr. Peter Bambakidis, is associated with the Cleveland Clinic. His older brother, Gust Bambakidis, is chairman of the physics department at Wright State University in Dayton, Ohio. Gust Bambakidis is a member of a national Greek-American fraternal organization of which Schiavo's attorney, George Felos, was once president.

That six-degrees-of-baklava kind of "connection" is no connection at all, and does not warrant an investigation.

We don't know if allegations of abuse are true because no one will investigate.

To my knowledge, there is no basis for any allegation of abuse. There is a radiologist's report that suggests that Terry Schiavo had some fractures consistent with invalids who have lost bone mass. Do you think that there was evidence of abuse that the court refused to hear?

We don't know whether Mr.Shiavo stands to gain something financial from Terri's death because he won't disclose his insurance policies.

What makes you think the court barred inquiry into this issue? (For that matter, what makes you think an insurance company would issue a policy on a woman in a permanent vegetative state?)

These are not intellectually honest objections to how the Florida court has proceeded.

meep: I think that terminally ill people have been allowed to dehydrate themselves voluntarily. It sounds ghastly to me, but the account I read suggested otherwise, that it was sort of voluntary-euthanasia-without-drugs.

As to the difference between a heart-lung machine and feeding tubes: one generally doesn't consider providing nourishment to a person to be "extreme medical care". Indeed, most of the time, people would consider someone deliberately withholding nourishment from a dependent to be murder.

Then why isn't taking someone off a heart-lung machine murder? I don't see any principled difference.

Ken: This isn't about substituting my judgment, it is about presenting my argument, which is what happens every time lawyers walk into the court room. Very little about the law is black letter, which accounts for the volumes of appellate and supreme court decisions. As to this particular law, which I have not read, if in fact, it provides so little protection for Florida residents who don't have signed directives, petitioning the elected officials to amend, change or revoke is certainly proper. I am extremely concerned about the standard for determining the existence of a medical directive than the definition of "comatose" and "persistent vegetative state" because if those words truly describe Terri's condition, my husband and I have changed our minds about letting someone else have the power to starve us to death. In this case, we have the classic dueling experts. Again, I urge caution on the side of life.

alkali: (For that matter, what makes you think an insurance company would issue a policy on a woman in a permanent vegetative state?)

Perhaps she was insured before she was in a "permanent vegetative state"? Just a guess.

meep:

As to the difference between a heart-lung machine and feeding tubes: one generally doesn't consider providing nourishment to a person to be "extreme medical care".

The constitutional right to refuse life-sustaining medical treatment undeniably includes the right of someone who is in a persistent vegetative state to refuse nutrition and hydration, since that was the life-sustaining measure involved in the Cruzan case in which the "right to die" was established.

Rose:

You are free to work to change the law, but the court is bound by the law as it is, not as you think it should be. You cannot substitute your preferred standard for determining a patient's wishes for the legal standard laid down in the existing statute, and expect the court follow your standard rather than the real one.

For reasons that I alluded to in an earlier post, I think it is unlikely that an effort to impose a very strict standard for determining a patient's wishes in this kind of case will succeed.

michelle dulak:

You seem to want to try to litigate the case in the kangaroo court of a blog, which is a waste of time. We don't have access to the evidence of Terri's wishes, we don't have the expert witnesses, we don't have Terri's medical records, we don't have the evidence regarding Michael Schiavo's motives, we don't have the ability to cross-examine, we don't have a judge familiar with the relevant law, we don't have any of it. What we have is a bunch of people who think that their suspicions, speculations, hearsay, theories, and bits and pieces of information of dubious reliability that they have picked up from the media and other sources constitutes a serious alternative to 13 years of formal legal process. It's absurd.

I don't know why Michael Schiavo doesn't divorce Terri. I don't know she really said to him what he claims she said. Neither do you. You can keep repeating your suspicions and casting aspersions on his motives for as long as you like and it still won't matter. What matters is the finding of the court.

But I will say that in most cases the legal guardian of someone in Terri's condition is likely to be a close relative, and in many of those cases, a relative who stands to inherit a substantial amount of money from a life insurance policy or other assets upon the patient's death. So your endless innuendo about Michael Schiavo's motives could apply in many such cases.

I'll ask you what I've asked others (without receiving an answer): At what point will you accept that the legal process in this case has reached its legitimate end and that the order of the court should be put into effect? It's been 13 years already. There have been endless reviews, re-examinations, and appeals. How much longer must this charade continue before you accept the finding of the court? Or will you never accept it unless it agrees with your predetermined conclusion of what it should be?

Michelle Dulak writes:

Perhaps she was insured before she was in a "permanent vegetative state"?

Possible, although Terri Schiavo was only 26 when she was injured, and it seems unlikely to me that a young couple without children would take out a long term life insurance policy. (To those who think that Michael Schiavo had some sort of master plan to that effect, spare me the innuendo.) In any event, I do not see any reason why the court would not have permitted inquiry into that issue, particularly when the court explicitly acknowledged the possibility that Michael Schiavo's testimony might have been tainted by his prospect of inheritance. Accordingly, if there were insurance policies, I'm pretty sure we'd know. If there is evidence that Michael Schiavo refused to respond to such a question, I would like to know about it.

"You are free to work to change the law, but the court is bound by the law as it is, not as you think it should be."

Huh? The Florida Legislature did change the law. You are the one arguing for what the law "should be," vs. what it is. There was a huge legislative fight, and your side lost. Deal with it.

"Accordingly, if there were insurance policies, I'm pretty sure we'd know. If there is evidence that Michael Schiavo refused to respond to such a question, I would like to know about it."

Here's some.

Xrlq:

Huh? The Florida Legislature did change the law.

The Florida legislature passed a law that attempts to transfer the powers of the judicial branch to the executive branch, by giving Governor Bush the power to issue an indefinite stay on the court order. There seems to be virtually unanimous agreement amoung legal scholars who have expressed a view on the matter that this law is unconstitutional.

The law in question in the statement you quote is the law that specifies the standard of evidence for establishing the patient's wishes. The Florida legislature has made no change to that law, as far as I know, and even if it does so in the future it could not apply that change retroactively to a case that has already been decided.

Xrlq:

The CNN story said that Michael Schiavo declined comment on that issue. So far as I can tell, he declines comment to the press on pretty much everything (which doesn't mean he's a good guy, that's just what he does). Presumably Terri Schiavo's parents' attorney could have asked that question and gotten an answer in the district court proceeding. That's a couple years ago now, and I doubt Michael Schiavo could have obtained an insurance policy in ther interim.

Ken: At what point will you accept that the legal process in this case has reached its legitimate end and that the order of the court should be put into effect? It's been 13 years already. There have been endless reviews, re-examinations, and appeals. How much longer must this charade continue before you accept the finding of the court? Or will you never accept it unless it agrees with your predetermined conclusion of what it should be?

Suppose this were a case of a convicted murderer on Death Row. Would you ask the same? Of course, in the case of a convicted murderer on Death Row there would be the possibility of executive clemency, yes? Not so here — at least, not as you style it.

Re monetary motives: The difference between Terri Schiavo's case and your average case where a guardian has a financial interest is that the money here was obtained in a lawsuit after her injury and was earmarked specifically for her care. (Also, the ordinary guardian isn't often overheard saying "When is that bitch going to die?" But I digress.)

alkali: My point was only that a pre-existing life insurance policy was a possibility. Scoffing at the idea of Mr. Schiavo profiting by his wife's death by positing that he would have had to get an insurance company to cover a severely disabled woman doesn't fly. She might have had life insurance; or, more likely, he would inherit whatever remains of her settlement money.

"this law is unconstitutional."

It's called checks and balances. Of recent years the judiciary has been usurping more and more of the legislative powers of the state through ridiculous constitutional interpretations. It's about time someone recognised that we need checks on the courts as well, and not unreliable old buddy system self-checks either.

I work in the insurance biz. I rather doubt any insurance company would issue life insurance on a person in a PVS (unless fraud were involved -- but they'd revoke the policy the moment they found out about the fraud). And if there's a policy preceding her heart attack, I rather imagine the company might not pay, especially if Mrs. Schiavo could have lived comfortably for several more years if not for her husband's decision to stop feeding her. It all depends on what restrictions are on the policy (for example, most life insurance companies will not cover a death of a soldier in military action. That's one of many situations they will not cover.) Insurance companies have plenty of lawyers, and they may not want to allow this precedent.

Other: the judicial branch has the power to interpret law. It is not given the power to make laws. If the legislature passes a law not contravening the state constitution, the judiciary can't do a damn thing about it. The legislature can decide the definitions of crimes, the legislature can decide the level of evidence needed to decide a person's wishes, and the legislature can give the executive branch the particular power to enforce the laws. Now, IANAL, so it could be that due process rights are being undermined by such a law (or some other constitutional issue). In which case the legislature is not taking away the judiciary's power, because the judiciary can rule on the constitutionality of this new law. It's not like Mrs. Schiavo can't be starved at a later date.

I did not know that people had the legal right to commit suicide by not eating. That's very interesting to me. I did know of people who were involuntary committed for anorexia -- I guess it's a matter of "unsound mind" in those cases. I know there =used to be= anti-suicide laws, but I suppose they've been struck down over the years as unconstitutional.

I have, of course, been looking at these things from a Catholic point of view, and not a legalistic point of view. I had thought that laws could be passed making it illegal to starve a person to death, but I concede I may be wrong about that.

michelle dulak:

Suppose this were a case of a convicted murderer on Death Row. Would you ask the same?

Yes.

Of course, in the case of a convicted murderer on Death Row there would be the possibility of executive clemency, yes?

Yes.

Not so here — at least, not as you style it.

The executive powers of clemency and pardon apply to criminal convictions and are meaningless in this context.

Now please answer my question: At what point will you accept that the legal process in this case has reached its legitimate end and that the order of the court should be put into effect? It's been 13 years already. There have been endless reviews, re-examinations, and appeals. How much longer must this charade continue before you accept the finding of the court? Or will you never accept it unless it agrees with your predetermined conclusion of what it should be?

Kate:

It's called checks and balances.

No, the system of checks and balances is the separation of powers. "Terri's Law" attempts to subvert that separation by transferring the powers of the judiciary to the executive. If the legislature is free to override a court ruling whenever it wishes by giving the executive the power to indefinitely stay that ruling, there is no such thing as an independent judicial branch. The judiciary just becomes a rubber stamp for the other two branches.

Of recent years the judiciary has been usurping more and more of the legislative powers of the state through ridiculous constitutional interpretations.

If you consider judicial interpretations to be ridiculous you are free to use the democratic processes enumerated in the Constitution to amend that Constitution, to change the law, and/or to appoint or elect new judges whose beliefs are closer to your own.

Ken (note capital "K" — how come Rose gets to be "Rose" and Xlrq gets to be "Xlrq" but I am "michelle dulak"?):

Thanks for your very clear and candid answers. I take it that after 13 years, say, on Death Row, enough is enough. Anyone's been there that long, just fry 'em, yes? How many years, &c. As long as we've got that settled.

But in the Schiavo case we're really talking five years. There's been litigation over it for 13 years, but the first chunk was dedicated to getting money to keep her alive. The litigation to remove her feeding tube (that is, to kill her, rather than to keep her alive) began in 1998.

What is it you want — a firm time limit? I would not put a time limit on appeals from prisoners on Death Row, and I would not put a time limit on this. If you are correct about Terri Schiavo's mental state, she is not now suffering and can't possibly suffer any more. If her rights have been violated in her having been kept alive the past 13 years, they can hardly be violated more. Is 15 years of PVS worse than 13 years? Is either worse than the 3 years she had endured when her husband vowed to rehabilitate her and got more than a million dollars to do it?

In answer to your question, then: I would say that the Schindlers ought to use whatever legal means seem good to them, and that they ought to proceed as far as they think wise. I don't have an opinion about the length of the process one way or the other.

meep:

In which case the legislature is not taking away the judiciary's power, because the judiciary can rule on the constitutionality of this new law.

I fully expect it to. And I fully expect the judiciary to strike down "Terri's Law" as an unconstitutional violation of the separation of powers, and to reinstate the original court order to remove the feeding tube. Michael Schiavo is going back to court on Monday for this very purpose.

Michelle Dulak writes:

(Also, the ordinary guardian isn't often overheard saying "When is that bitch going to die?" But I digress.)

I think you're referring to this affidavit. I have read this affidavit, and in my opinion it's not credible, for three reasons:

(1) The affiant attributes to Michael Schiavo some really over-the-top behavior that doesn't seem plausible even if you are willing believe the worst about him. She says that he made remarks like the one you quote on a regular basis to just anybody, along with remarks about what he would do with his inheritance. In short, we're being asked to believe that Michael Schiavo is not only Snidely-Whiplash-evil but really, really stupid. Even if you buy that, I can't believe that Michael Schiavo would behave that way (in 1995-96, the dates the affidavit refers to) and then wait two years to seek a court's permission to withdraw life support (in 1998).

(2) The affiant attributes to Terri Schiavo a lot of conscious interaction with others that I honestly don't think she's capable of. She is not comatose or brain-damaged on the level of even a severely retarded person. If you read the court decisions, the scans show that there is a mass of cerebro-spinal fluid where Terri Schiavo's cerebral cortex used to be. Her lower brain is keeping her heart going, regulating sleep/wake cycles, etc., but her upper brain is just gone. That doesn't necessarily mean that ANH should be withdrawn, but it is the fact. Accordingly, I tend to think that this affiant's description of how Terri Schiavo acted when she was alone with her is sympathetic embellishment of a piece with the rest of the affidavit.

(3) The affiant suggests that there was a broad conspiracy at the nursing home to assist Michael Schiavo, involving other nurses, destruction of records, etc. The affiant also suggests Michael Schiavo regularly tried to kill his wife by injecting her with insulin (but, by some miracle, always failed). These kinds of things just set off my BS detector.

(4) The affiant gave this affidavit in August 2003. People reasonably question why Michael Schiavo appeared to have changed his position several years after the malpractice trial, but I think the same criticism could be made here: if this woman was aware of all this, why didn't she come forward before?

In any event, I invite you to read the affidavit and make up your own mind.

michelle dulak:

What is it you want — a firm time limit?

No, I want some indication of the procedural limit you would impose for ending the appeals and review process and rendering a final decision which is then put into effect. What is that limit? What conditions that are not currently satisfied do you claim should be satisfied before the legal proceedings are brought to a close?

If you are correct about Terri Schiavo's mental state, she is not now suffering and can't possibly suffer any more.

It doesn't matter whether she is suffering physically or not. She is being deprived of her constitutional right to refuse life-sustaining medical treatment.

If her rights have been violated in her having been kept alive the past 13 years, they can hardly be violated more.

Of course they can. Every day, every hour, every minute that she is forced to continue to receive nutrition and hydration against her wishes adds to the violation of her rights.

In answer to your question, then: I would say that the Schindlers ought to use whatever legal means seem good to them, and that they ought to proceed as far as they think wise.

I didn't ask you that. I'm asking you at what point you think the legal process should be brought to a close so that a final decision can be rendered and put into effect.

alkali: Thanks very much for the link to the affadavit (I hadn't seen it in full before, only "outtakes" from it).

I'll read it through more carefully tonight, but it doesn't read to me like the woman was deranged. Her testimony might have been suborned, I suppose, but for what reason, and by whom? Is the idea that Terri's parents hated their son-in-law enough to bribe someone to accuse him of attempted murder, or merely that the nurse was imaginative enough to come up with all of this on her own?

Just to your (1): Mr. Schiavo had every reason to wait as long as possible before requesting denial of nourishment. He'd gotten a settlement specifically for the purpose of caring for his wife, who was then in a "vegetative state." He could not have moved swiftly to withdraw nourishment without it looking very odd. Perhaps he was presuming that she would die of her own accord. Then again, maybe he wasn't.

michelle dulak:

Let's suppose that the Florida supreme court strikes down Terri's Law and reinstates the original court order to remove the feeding tube. Do you agree that the removal should take place at that point? Or are you claiming that there are some legitimate legal grounds for delaying the removal still further? If so, what are those grounds?

Ken:

No, I want some indication of the procedural limit you would impose for ending the appeals and review process and rendering a final decision which is then put into effect. What is that limit? What conditions that are not currently satisfied do you claim should be satisfied before the legal proceedings are brought to a close?

I honestly don't understand the question. You have here two parents who believe that their daughter is alive and want her to stay that way. They ought to pursue whatever legal means they can think of.

There comes a point in the ordinary Death Row case where the options are exhausted and the execution goes forward. Here, too, the options may be exhausted eventually, and a "decision [ . . . ] rendered and put into effect." [Pretty damn cold way of phrasing that, if I may say so.]

But the point isn't to "wait till you get the right answer"; it's to keep trying for what you think is the right answer. If you run out of tries, the game's over. But if you are convinced you are right, why would you quit? You get as far as you can, and if you hit a brick wall, you give up.

Jesus Ken, what are you, some sort of robot? Chanting "her constitutional rights" over and over won't change the fact that it is inhuman and disgusting to kill a person in this fashion. I am not interested in abstract theories of "rights" as regards to this particular subject, and I find your hairsplitting not only inhuman, but boring. Go back to wherever it is you prefer to hang out, I don't feel like giving you more server space.

And no, you have no "constitutional rights" to post your comments here, so don't even bother to complain. Get your own blog.

michelle dulak:

I honestly don't understand the question. You have here two parents who believe that their daughter is alive and want her to stay that way. They ought to pursue whatever legal means they can think of.

I tried to formulate it in a more specific way in my later post. I'm not asking you whether you think the Schindlers should stop fighting for what they believe is the right outcome. I'm asking you to describe the conditions under which you would accept that an order to remove the tube should be put into effect. Let's suppose the order is reinstated by the Florida supreme court next week. Do you agree that the tube should then be removed in accordance with that order, or do you claim it should be delayed further (and if the latter, on what grounds)?

Andrea Harris:

Chanting "her constitutional rights" over and over won't change the fact that it is inhuman and disgusting to kill a person in this fashion.

The right to refuse life-sustaining medical treatment is established constitutional law. I do not consider compliance with such refusal to constitute "killing" a person. Do you believe that the state should have the power to force someone in a persistent vegetative state to receive nutrition and hydration against their wishes?

Ken (or should that be "ken"?):

I am not a lawyer, and I have no idea how successful a challenge to the hypothetical SCOFLA decision would be. But were I advising the Schindlers, I would simply encourage them to seek whatever legal avenues they can find, exactly as Death Row inmates seek out whatever avenues they can find.

michelle dulak:

I am not a lawyer, and I have no idea how successful a challenge to the hypothetical SCOFLA decision would be.

But what legal basis do you claim there would be for such a challenge? As far as I'm aware, supreme court rulings of this kind are not subject to appeal, anyway. If that is the case, why shouldn't Terri's feeding tube be removed at that point in accordance with the court ruling?

kEN: Oh, whatever. You take the "finding of fact" that Terri wanted not to live in this state as actual fact, in spite of her husband's explicit request for money for her "perpetual care," in spite of his obvious pecuniary interest, in spite of his infidelity. Whatever. There's really no point in arguing further.

mICHELLE dULAK

I don't care what the dipshit court says in this case, you bloodless, dry-dicked cyborg. You disgust me. You also must think we are all morons: your continued insistence that Terri Schiavo is somehow capable of refusing her "constitutional right to refuse life-sustaining treatment" even though the reasoning for the Kill Terri Now crowd's desire to reduce her to cold meat is her alleged condition of being brain dead and so, supposedly, not worth pouring any more Ensure into. So if she is too brain dead to communicate with anyone, how the flaming fuck does anyone know she wants to die? No one knows what she wants, or if she wants anything at all.

And fuck you for continuing to spew "the state! the state!" The state doesn't want to do anything to or for anyone; human beings do. Her parents want to take care of her. If they want to take care of their brain dead daughter, why shouldn't they? Since we can't (so we are being told) know what Terri wants, the humane and moral position, one that we have struggled for thousands of years to establish in human society, is to err in favor of life. People like you would like to turn back the clock to those wonderful old days when there was no government and we were all free to be beaten and eaten by the strongest member of the tribe. But you disguise it all with cant about "freedom" and "constitutional rights" and "the evil State." You're full of shit.

michelle dulak:

You take the "finding of fact" that Terri wanted not to live in this state as actual fact, in spite of her husband's explicit request for money for her "perpetual care," in spite of his obvious pecuniary interest, in spite of his infidelity.

No, I take it as the finding of the court, and therefore as a legitimate basis for the order to remove the feeding tube. Again I ask, on what grounds do you claim the court order should not be put into effect?

Okay, that's it; Judge Ken is banned.

[Your long, boring comment has been deleted. I told you not to post here. The Management.]

I have a living will because there are certain conditions that I have considered. In addition to the living will I have a durable power of attorney to my wife. If something happens to my wife there are two other people on that DPOA, the two kids that like me best. These things are the next thing to free, one can write them oneself and the only cost is the Notary's fee.
In most states one does not even need to do that, simply make one's wishes known to several people, people who have nothing to gain. Invite your best friends to dinner and take ten minutes out for a serious discussion.
What makes this case difficult is that there is some serious question about Ms. Schiavo's actual wishes and Mr. Schiavo's actual motives.
It is said that hard cases make bad law. The best thing about this law is that it's very narrowly tailored. Maybe it's right, maybe it's wrong but, if it's wrong it harms no one else. If there's a chance of error, I'm with Andrea, err on the side of life. Hell, you can always decide to kill somebody.
There is value in this case. It's forcing a whole bunch of us to decide what we want if something real bad happens and TO PUT IT ON PAPER.

Okay, perhaps as a Canadian I am missing some essential element of American culture, but reading through these posts, the thought that came to me was that some, especially Ken, have made The Court and Constitutional Rights their god, and are as fanatically single-minded in their worship thereof as the most radical Muslim--or Christian--fundamentalist.
And another point, which I have not seen anyone make yet--it does happen that sometimes a person who thinks they could not live in such a condition, finds, when faced with it, that life is still preferable. Can you imagine being caught in that situation, unable to communicate that you've changed your mind? Yes, that presumes that a portion of the person's basic awareness is still active inside the "prison" of the body, but I don't believe there is a court anywhere in the world capable of deciding whether that "spark" is present or absent.
I am praying for Terri's life. It is so clearly the morally right decision here.

Well, I was going to make a comment, but after reading all of Ken's dry, bloodless, repetitive nonsense I need to go have some medically-mandated life-supporting hydration and nourishment before I lapse into a persistent vegetative state.

P.S. In case I do so lapse, please keep me alive, since you won't be able to tell what my cognitive state is. And don't let Ken anywhere near me!!!

Karen - re: awareness - my point exactly.

Talk about Death-Eaters. It's like these people can't wait to kill Mrs. Schiavo.

I must say that, as a staffer for the Florida Legislature, I've found reading all this very interesting. I'm not going to publicly offer my own opinion here for obvious reasons, but merely observe that this case certainly isn't over yet: more twists and turns surely await.

THANK YOU, Andrea, for getting rid of that gnat-ken. His posts brought back memories of the annoying folks in my law school classes that thought if they could prolong an argument and get in the last word then they would have "won." Won what - Who knows? They usually missed the whole point of the case or the concept, but they sure could argue. I kept checking back to the posts to see if Ken finally wrote, "I know you are, but what am I."

For all those who wish to make the courts and judges infalliable, I have a few words for you:
Dreyfuss, Dred Scott, "separate but equal", Joseph Salvati (wrongly convicted of murder), Ray Krone (wrongly convicted of murder not once but twice).

Kathy

Michelle Dulak writes, in response to my comment regarding this affidavit:

... it doesn't read to me like the woman was deranged. Her testimony might have been suborned, I suppose, but for what reason, and by whom? Is the idea that Terri's parents hated their son-in-law enough to bribe someone to accuse him of attempted murder, or merely that the nurse was imaginative enough to come up with all of this on her own?

I don't think she's deranged or that she's necessarily lying. Regardless of what you think ought to be done here, it is a very sad case, and Terri Schiavo's parents are very sympathetic. When they say they believe their daughter recognizes them, I don't think anyone can say they are lying, but at the same time I think we have to consider whether they might be mistaken. Likewise with the person who gave this affidavit: obviously people are very emotional about this case, and people who very much want to help can talk themselves into saying that they remember events that didn't actually happen. Things like that happen in widely publicized cases.

Peter writes:

I have a living will because there are certain conditions that I have considered. In addition to the living will I have a durable power of attorney to my wife. If something happens to my wife there are two other people on that DPOA, the two kids that like me best. These things are the next thing to free, one can write them oneself and the only cost is the Notary's fee.

Karen Russell writes:

[I]t does happen that sometimes a person who thinks they could not live in such a condition, finds, when faced with it, that life is still preferable. Can you imagine being caught in that situation, unable to communicate that you've changed your mind? Yes, that presumes that a portion of the person's basic awareness is still active inside the "prison" of the body, but I don't believe there is a court anywhere in the world capable of deciding whether that "spark" is present or absent.

Karen, are you saying that if it were up to you, you wouldn't honor the directives in Peter's living will, either (1) because of the possibility he might have changed his mind since he made it, and/or (2) because you do not think that medical science could demonstrate with sufficient certainty that Peter is in a condition that would trigger the directives of the living will?

Alkali:

Yes, you're right things like that happen in widely publicized cases. For instance, we have the lead lawyer for the husband believing he can communicate via telepathy with people in comas...and, gosh darn, if they don't always tell him that they want to die.

Please remember that emotions are running very high on both sides of this issue. In fact, I'm struck with what appears to be an almost fanatical desire to see this woman dead on the 'right-to-die' side. If we must err, let us err on the side of life, since we cannot undo an error made on the side of death.

Terry, like all of us, will die eventually--no one can take anyone else's right-to-die away from them. No matter how much we might want to, the right-to-die is one thing none of us can give away. It is, however, possible to take away one's right-to-live.

Terry is in no pain, as long as they give her water and nutrition, she is greatly loved, her parents and siblings are dedicated to taking care of her, in fact, in her condition, she could, if her husband would allow it, be taken care of in the home. Why kill her based on the testimony of her husband, whose motivation is at best dubious?

I'm with Andrea on this one.

from everything I've read about the case, it sounds like if the money were to disappear tomorrow, Michael Schiavo would say "she's YOUR daughter" and "abandon" her to her parents' care.

I think, by having procreated with another woman, he has abandoned his rights as a husband to have a say in Terri's care. And the fact that her parents are willing to care for her, and the fact that rehab has not even been TRIED on her (per her "husband's" orders), makes me really suspicious of his claim that she said she wanted to die if she were ever in a state requiring heavy medical care.

and starving someone is a horrible way for them to die. Especially someone who seems to have some level of brain function.

If it were me, in Terri's place? If I had someone (parents, supportive husband, supportive sibling) who was willing to take on the burden of my care, I would want to stay alive if there was some chance that I could regain a minimal level of function (or that I showed some minimal level of function). If what happened to Terri happened to one of my parents or my brother, I would move heaven and earth to help them, to support them, to care for them.

but then, I'm a loser, because money is unimportant to me :)

Alkali: The short answer is far more #2 than #1. Your question is general, rather than specific to Terri's case, so please bear with me while I try to get my thoughts down coherently. First, a general comment. From what I have read, dehydration (and in this case that is what would kill Terri, not starvation) is a slow and extremely painful form of death. Can't you just hear the howls from the animal rights activists if you tried to kill a dog in that manner? Yet it appears that it is okay to do it to a human being because it allows us to pretend that "nature is taking its course", instead of admitting outright that we are killing her deliberately. I'm sorry, I cannot stomach that kind of double-think. Denial of a need as basic as water puts us outside the boundaries of human.
In Terri's case specifically, there are experts who believe she could be rehabilitated to take food and water orally, eliminating the need for a feeding tube. WHY were they never allowed to try this? I have heard absolutely no explanation of this from the husband's side, and in the absence of any reasonable justification, I have to question his motives. Holding my nose.
Most important in Terri's case, she is not in a coma, she is not in pain, she is not terminally ill, and if she is a "vegetable"--well, if the carrot I had just gotten out of the fridge to prepare for supper started reacting as she does, let's say I would have very serious qualms about chopping it up for soup!
Have you even been handed a very young baby to care for? Here is this scrap of humanity, full of random motions and loud noises which are meaningless to you and you have no way to communicate with it. Yet if you live with it and try to care for it, you very quickly learn that Reaction X means "Feed me!" and Reaction Y means "Change me!" and Reaction Z means "I'm bored! I need some social interaction!" You may be totally incapable of explaining it to an onlooker, but very real communication is going on between you and that baby.
"Experts" can be mistaken. In Terri's situation we have on one hand "Experts" who have spent a limited time with her, looked at her charts and brain scans and so forth, and decided that to the best of their knowledge nothing is there. (Of course they are not always humble enough to admit that their knowledge might be limited.) On the other hand we have her parents and primary caretakers who spend much loving time with her, who are convinced that the responses are present. My gut feeling in this situation is that the parents are probably right, and at the very least we have to give them and Terri the benefit of the doubt. Balance this against a husband whose conduct throughout has been less than honourable and whose motives for "respecting her right/wish to die" are highly questionable and what I see is a husband who has very nearly found the perfect way to legally murder his wife and escape with the money. So many who support him seem to be fixated on death. Why? Their hidden agenda frightens me. Alkali, now back to your more general question. As to your option #1, if the person is in a geuine deep coma, there is no possible question of their changing their mind, so it does not apply. If the person is to some limited extent responsive, then yes, #2 could merit serious consideration. I do not know the conditions of Peter's or anyone else's Living Will. I do not believe in preserving life at all costs, but the end stages must be made as comfortable as possible, with pain relief and water to ease thirst as needed. I am utterly opposed to anything that actively hastens death, and anyone who wanted to name me as guardian in a Living Will would know beforehand where I stand, and details would be well hashed out ahead of time.

Dave J: I agree completely. This isn't "over" until Terri is dead. And even then, I expect some post-mortum legislative activity.

Polly: Ditto.

How sad that there are people who actually believe that because a court has said Terri must die, the rest of us should shut up and go away. I am reminded of Niemoller's "First They Came For The Jews."

Hello all. Andrea, kudos to you for not suffering that fool Ken any longer. I have observed Ken and "alkali" both strenuously advocating Terri's death all over Blog-land in recent days. One commenter on this thread correctly observed that Ken exhibits an idolatrous (and incomprehensible) worship of "the Courts." Makes one wonder if he has any knowledge whatsoever of just how corrupt, moronic, fallible and generally disgusting our precious "court system" is, especially at the state court level. (Although "Dred Scott" "Roe / Doe" and "Lawrence" remind that the fish also rots from the head sometimes.)

I don't know why some folks are so incredibly eager to kill Terri / err on the side of death. It's spiritually VERY creepy.

Slate on why Michael Schiavo does and should have the power to make the decision about ANH for his wife

The New York Times on why Terri's Law is likely to be overturned

Robin writes:

I have observed Ken and "alkali" both strenuously advocating Terri's death all over Blog-land in recent days.

I think that's an unfair characterization of my comments. But because I've never said how I feel on the ultimate issues, I'll say so now:

1. I think living wills should be honored, and in cases where people have been very clear about what they want, I don't think the absence of a piece of paper should prevent their wishes from being honored.

2. I think the evidence is very strong that Terri Schiavo's brain has been irreparably damaged, she no longer has any conscious thought or perceptions, and there is no significant possibility that she will ever recover any cognitive ability. (Why am I so sure? Primarily because the extent of the damage can be verified with CAT scans: the only dispute between the doctors, including the doctors retained by the Schindlers, is whether she has a very small amount of living cerebral tissue or none at all.)

3. I think there is very little substantive evidence of what Terri Schiavo's wishes were. More specifically:

a. On one hand, we have testimony by Michael Schiavo and members of his family that Terri Schiavo would not want to be maintained on a feeding tube. That is not inherently incredible; many people express that sentiment. However, you don't have to think that Michael Schiavo is an awful person to ask whether his desire to move on with his own life, and the desires of his family to see that happen, are coloring their memories.

b. I frankly haven't heard much about what the evidence on the other side is. I assume the Schindlers have argued that they know their daughter and believe she would want every chance at recovery. That is also a sentiment many people express. However, I think their views may be colored by false hope for their daughter's recovery.

c. It also seems likely that the Schiavos and the Schindlers have become entrenched in their positions because of animosity between them both before and after the litigation. That animosity may well be the fault of Michael Schiavo, but it tends to cast doubt on all parties' testimony.

Based on all that, if the standard is "which way does the balance of evidence as to her wishes tip?" -- and, under Florida law, that appears to be the standard -- I can't say the Florida courts have come to the wrong legal conclusion here, because it seems to me that a fair-minded person could find that, in view of all the evidence, it is more likely that Michael Schiavo's view of Terri's wishes is correct than her parents' view.

However, the fact that the courts may have reached the right legal conclusion doesn't mean that that legal conclusion is the right one. Several states have adopted more demanding standards, like the "clear and convincing evidence" standard, in evaluating claims that a person would want life support withdrawn. I have not seen clear and convincing evidence of what Terri Schiavo's wishes were, and I was surprised to read in one court opinion in this case that the court thought the evidence might meet that standard if it had applied (though in fairness to the court, I have not seen the testimony for myself, and perhaps I might be convinced otherwise). I think there are good arguments that this higher standard should be used, though as a strictly legal matter I think it is unlikely that the standard can be made to apply retrospectively.

In short, I think this a very hard case and it raises very important questions. But I have taken issue with a lot of what has been said in support of the position advanced by Terri Schiavo's parents, because some of it is really dangerous: factual claims that reflect magical or conspiratorial thinking or otherwise lack any substantial basis; suggestions that advance directives should not be honored in general, which I think many people would find to be a scary proposition; and alarmist claims about what this case might imply for disabled people generally, claims which in my view don't avoid a slippery slope so much as they genuinely risk creating one.

One's opinion about what standard of evidence should be required to establish the patient's wishes really comes down to one's view of whether, and by how much, it is worse to withhold life-sustaining treatment from someone who wishes to live or force life-sustaining treatment on someone who wishes to die. The "preponderance of evidence" standard that apparently applies under Florida law essentially says that these possibilities are equally bad. It's not clear to me that this judgment is wrong, and in any case I cannot substitute my personal judgment for Florida law.

Those who oppose the removal of the feeding tube in this case need to clearly describe the circumstances under which they would permit it in other cases of patients in a PVS state. The impression I get from some comments is that the posters think that patients in Terri's condition should be forced to remain alive even if they have left a clear written document stating that they do not want to be kept alive with tubes and machines. The actions of the Florida legislature have alarmed many elderly people in Florida who are now worried that their living wills and do-not-resuscitate orders may be overridden by the Florida legislature or governor. This is why the AARP is considering entering the dispute on Michael Schiavo's side.

Roberta spaketh from on high:

"Those who oppose the removal of the feeding tube in this case need to clearly describe the circumstances under which they would permit it in other cases of patients in a PVS state."

No we don't.

"The impression I get from some comments is that the posters think that patients in Terri's condition should be forced to remain alive even if they have left a clear written document stating that they do not want to be kept alive with tubes and machines."

No we didn't.

"The actions of the Florida legislature have alarmed many elderly people in Florida who are now worried that their living wills and do-not-resuscitate orders may be overridden by the Florida legislature or governor."

Would these be the same elderly people who "mistakenly" voted for Pat Buchanan in 2000 and then complained that they really meant to vote for Al Gore?

alkali:

I agree with almost everything you say, but I don't think you are right that there are good reasons for preferring a higher evidentiary standard than preponderance in determining the wishes of the patient. The dissenting opinion of Justices Marshall, Brennan and Blackmum in the Cruzan case goes into this question in some detail.