Reflections on the Terri Schindler-Schiavo Controversy

Abstract

Despite the enormous attention it received, the Terri Schindler-Schiavo litigation is not legally significant. The litigation involved the application of a fairly wellsettled legal framework. This framework permitted, however, an unjust result. The controversy over Terri’s fate has, though, helped to focus attention on a consensus that is in need of re-examination. This paper explores the lessons that ought to be learned from the Terri SchindlerSchiavo litigation. After briefly discussing the basic facts and the complex litigation history, the paper considers the relevant federal constitutional and Florida law. The paper then critiques Florida law and explains the legal and moral considerations that ought to inform the re-examination that is so sorely needed. The most important effort needed is to restore the sanctity of life ethic. ESPITE THE ENORMOUS attention it received, the Terri Schindler-Schiavo litigation is not legally significant. In fact, a recent article on the case by John Robertson was entitled “Schiavo and its (In)significance.” Robertson describes the case as legally “routine” and concludes that the case “will have contributed little to end-of-life law, but 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.” D As others have noted, Schiavo involved the application of a legal framework that has been developed in this country over a fifteen-year period from the mid-1970s through the early 1990s. This largely settled legal framework was described by Lawrence Gostin in an Life and Learning XIV 28 article on the Schiavo case: “Federal and state courts have reached a broad consensus on matters of death and dying since the seminal cases of Karen Ann Quinlan in 1976 and Nancy Cruzan in 1990. So too there has been substantial consensus in the bioethics literature. Courts and scholars have affirmed a person’s right to refuse lifesustaining treatment and concluded that this right remains intact even if the person is no longer able to speak for herself. Near relatives and the courts should adopt the same course of action the person would have chosen if competent.” The Schiavo case involved the application of this fairly wellsettled framework. The subsequent litigation over the Florida and federal laws that were designed to save Terri presented a number of interesting issues, but I do not think they are of much general applicability to these controversies. Both laws applied only to Terri and I think it was no surprise that the laws did not ultimately succeed in changing the outcome that had already been litigated in the Florida courts. After these efforts failed, Terri died on March 31, 2005. This is not to say that I approve of what happened in the Terri Schindler-Schiavo litigation. The legal regime that has developed in this country since the mid-1970s is terribly flawed. This paper will explore some of the principal flaws in the current consensus. The major defect in the current situation is that there has been a collapse in the traditional sanctity of life ethic. Our task is to restore this ethic. This is a cultural battle of enormous proportion; the battle here is not just or even primarily a problem of activist judges. The Schiavo case, although legally not very significant, has helped to open peoples’ eyes to the injustice of the existing legal regime and has helped to focus public scrutiny to a consensus that is sorely in need of reexamination. In this paper, I will attempt to explore the lessons that ought to be learned from this litigation. In section 1, I will set forth the basic facts. I will focus primarily on the litigation in the Florida courts that ended with the ordering of the withdrawal of Terri’s food and water. I will only refer briefly to the litigation in the Florida courts about the constitutionality of Terri’s Bill (the Florida law that authorized Governor Bush to restore Terri’s food and water) and to the litigation in the federal courts after Congress passed a law that permitted the federal courts to hear certain issues in the case. In section 2, I will discuss the federal constitutional law that bears on this controversy. In section 3, I will discuss the relevant Florida law. This discussion will