A Cautious Man
March 21, 2005
 
Wild Billy's Circus Story
These are going to be more-random-than-usual thoughts, on a tragic situation. I sat transfixed watching C-SPAN last evening, as the House of Representatives engaged in debate on continued the circus initiated by Sen. Bill Frist's special legislation about Terri Schiavo. Why is this a "circus"? Because they showed that they do not know (and I certainly don't know) what poor Ms. Schiavo would have chosen for herself. And that should be the only, the absolute only criteria here. I know that people have sincere beliefs that no life-sustaining care should ever be withheld - but there are also people who believe that, under certain circumstances, it is appropriate to withdraw medical care, and even nutrition, from a person in a persistent vegetative state. The government should not interfere with a person's legal right to continue to receive treatment - and, in the same way, the government should not interfere with a legal right to decline treatment.

It's also a circus because Senator Frist and others are trying to deny the undeniable - that this is a law directed to a single individual's case (Note - if the link does not work, go to the Library of Congress "Thomas" Web Site, and search for S. 686):
SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
What is so wrong with this? Well, it turns out that there already are laws in Florida which provide for proceedings to protect patients like Ms. Schiavo. I was curious about what Florida law actually says about this issue, and found that Florida has a law specifically granting the right to decline life-sustaining measures - and also provides for how to make that decision if the patient is in a "persistent vegetative state":
1) If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;

(b) The patient's spouse;

(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;

(d) A parent of the patient;

(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or

(g) A close friend of the patient.
You'll notice that "parent" is further down the list, after "guardian" and "spouse". I'm unaware as to whether the existence of this law was even recognized by Congress in passing Sen. Frist's bill. The Florida law provides for protection of the rights of the patient:
(2) Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

(3) Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.
Okay, so there's already a law in Florida about this. Was anything done to legally determine what should be done in the case of Ms. Schiavo? Yes, there was, but once again this is something which the Federal enactment ignores. Through reading at No More Mister Nice Blog and Roger Ailes, I learned about a website with a valuable store of information on this matter, run by a gentleman named Matt Conigliaro and called Abstract Appeal. He has a specific "Terri Schiavo Information Page", and explains better than I could why that's important: "I have created this page to help people understand the legal circumstances surrounding the Terri Schiavo saga. In my view, there continues to be a need for an objective look at the matter. There is an unbelievable amount of misinformation being circulated." There, for the first time, I was able to find the February 11, 2000 decision of the Florida court concerning what Ms. Schiavo would have wanted. I think that should be read, by anybody discussing this matter. Sen. Frist's bill, on the other hand, tells the Federal courts that they should not pay attention to the decision of the judge who actually heard the witnesses and the doctors testify: "In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings."

That brings me back to what I thought about at the start of this post. While some may disagree, I think that people have the right to make these decisions. Florida law provides for this, the law also provides for a process to determine the patient's wishes, and that process was carried out. Despite this, the politicians have postured on this case, and inserted themselves into this tragic situation, without even caring about or bothering to learn the facts. For more on the hypocrisy which is a big part of this, I suggest reading this post from Digby, and especially this post from Mark Kleiman, about how less newsworthy patients have their life-sustaining treatment removed even over the objections of their decision-making family members:
Sun Hudson, a six-month-old boy with a fatal congenital disease, died Thursday after a Texas hospital, over his mother's objections, withdrew his feeding tube. The child was apparently certain to die, but was conscious. The hospital simply decided that it had better things to do than keeping the child alive, and the Texas courts upheld that decision after the penniless mother failed, during the 10-day window provided for by Texas law, to find another institution willing to take the child.
You should read the rest.

As for how this will end, who knows? In the end, I don't really think that Sen. Frist or many of the other Senators and Congressmen who pushed for this actually care. They made their political point, and they'll move on, safe in the knowledge that the people whose votes they are pandering to get, won't ever really find out all the facts of the case.

Oh, yeah, and the U.S. Catholic Bishops are launching their campaign against the death penalty today. Will Sen. Frist, Congressman Sensenbrenner, & co. rush to join in that one? Somehow, I doubt it.

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