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The Case of Theresa Schiavo

…I felt my mind relax and my weight sink into the ground. I began to feel light-headed as I became more reposed. Although feeling like I could drift into sleep, I also experienced a sense of heightened awareness. As Mrs. Browning lay motionless before my gaze, I suddenly heard a loud, deep moan and scream and wondered if the nursing home personnel heard it and would respond to the unfortunate resident. In the next moment, as this cry of pain and torment continued, I realized it was Mrs. Browning. I felt the mid-section of my body open and noticed a strange quality to the light in the room. I sensed her soul in agony. As she screamed I heard her say, in confusion, “Why am I still here…why am I here?”

He took the case. (The exact significance of the Alien moment, the part when Felos felt the midsection of his body open, goes unexplained in Litigation as Spiritual Practice.) A probate judge denied the request to terminate Mrs. Browning’s feeding. A story was pitched to a local paper. “We had contacted the St. Petersburg Times, a fairly well-respected paper with Tampa Bay’s widest circulation,” is how this was put. The St. Petersburg Times ran a Sunday feature, “When Living Wills Fail.” Letters to the editor were written. National right-to-die organizations lobbied the Florida legislature. Six months later, Felos wrote, “my client had become a cause celebre and this case the spearhead of a social movement.” He was undeterred by a gubernatorial veto on legislation meant to allow the removal or refusal of feeding tubes in cases when the patient had so expressed this wish. The day after the veto, on July 4, 1989, a network news crew happened to “find” Felos at his office. “They ended up coming over for some taping,” he wrote, “and there I was on the holiday news—Mrs. Browning’s white knight, stalwart at his covered desk, intently crafting her plea of last hope to the [Florida] Supreme Court. Did I love it!”

A few days later,” Felos received a call from Mrs. Browning’s primary physician saying that she had begun the irregular Cheyne-Stokes breathing that precedes death. The case, then, might have seemed to some about to resolve itself, although not to Felos. On July 14, he finished the brief to the Florida Supreme Court. Midway through the evening of July 16, he received word that Mrs. Browning had died. The next day at noon he held a press conference. “Mrs. Herbert and I agreed to pursue the case to its final decision,” he explains in Litigation as Spiritual Practice, “and we used the conference to press our cause in the court of public opinion.” The final decision, which came down in 1990, extended what was allowed by Florida’s living will statutes to include the termination of tube feeding, a victory for Felos. “Within a year or so, families were routinely able to remove feeding tubes from patients like Mrs. Browning,” he wrote. “Lawyers weren’t needed, so my success happily proved to be the bane of my newly developed specialty, although I still do get the occasional right-to-die case that stretches the envelope.” It would be the case of Theresa Marie Schiavo that sufficiently stretched the envelope to return George Felos to the court of public opinion.

3.

There appeared in the course of this case many discussions of the separation of powers, analyses of the proper role of the legislative and judicial branches of the government. (The role of the executive branch, since the President’s sole contributions were the interrupted-spring-break and pajama-signing tableaux, did not substantively enter the discussion.) The case was seen by some on the right as validation of their conviction that the judiciary was out of control. A majority of Americans, on the other hand, saw a gross example of legislative opportunism, a clear demonstration of the power of the religious right to influence legislation, a threat most specifically to pro-choice protections in the matter of abortion and more generally to the privacy rights embodied in the Constitution itself.

These arguments seemed necessary, but they also seemed, if not exactly an evasion, not quite the beating heart of the matter at hand. On each side of the debate, the convictions that the Schiavo case was seen to validate were prior convictions, old stories, rendering the discussion déjà vu, a hermetic reiteration of familiar griefs with and outrages of our political process. What might have seemed a central argument in this case—the ethical argument, the argument about whether, when it comes to life and death, any of us can justifiably claim the ability or the right to judge the value of any other being’s life—remained largely unexpressed, mentioned, when at all, only to be dismissed. Discussions of whether Theresa Schiavo’s life was worth living slipped without segue into reiterations of her “prognosis,” her chances for “recovery”: into judgments, in other words, and fairly uniformly negative judgments, about the value of a gravely damaged life. “I mean, at this point, for fifteen years, she’s been this way,” a caller on Larry King Live said to George Felos. “She has no quality of life. Wouldn’t it be better for her to not continue living in this condition?”

Of the many who commented on the case, Felos himself, curiously, came closest at this point to acknowledging what might have seemed the question at its center. “Terri doesn’t have any cognition, Larry,” he said to Larry King. “Quality of life is one of those tricky things because it’s a very personal and individual decision. I don’t think any of us have the right to make a judgment about quality of life for another.” He was nonetheless conducting a case that rested on just such a judgment, a contradiction he elided by reverting to that case’s central line: “I think the decision should be made based upon what that particular person wanted or didn’t want.”

In fact any notion about what Theresa Schiavo wanted or did not want remained essentially unconfirmable, notwithstanding the fact that a Florida court had in effect accepted the hearsay assertions that she had said, at one point, in reference to her husband’s dying grandmother and at another while watching a television movie about someone with a feeding tube, “no tubes for me.” (Imagine it. You are in your early twenties. You are watching a movie, say on Lifetime, in which someone has a feeding tube. You pick up the empty chip bowl. “No tubes for me,” you say as you get up to fill it. What are the chances you have given this even a passing thought?) Most commentators nonetheless seemed inclined to regard Theresa Schiavo’s “directive” as a matter of record, even as they undercut their own assumption by reminding us that the “lesson” in the case was “to sit down tonight and write your living will.” Living wills, it was frequently said, could be “Terri’s legacy.”

There was considerable fuzziness here, not least in the reverence accorded the “living will,” which seemed increasingly to be another of those well-meant and seemingly unassailable ideas that do not quite work the way we are encouraged to think they work. The chances of being admitted conscious to a hospital without being pressed to produce a living will have become virtually nil, yet any “living will” prepared in advance (as in “advance directive,” exactly the document we are pressed to produce) requires us to make specific medical decisions about situations we cannot conceivably anticipate. According to studies cited last year in the Hastings Center Report by a medical researcher and a law professor at the University of Michigan, Angela Fagerlin and Carl E. Schneider, almost a third of such decisions, after periods as short as two years, no longer reflect the wishes of those who made them. The “health care proxy” or durable power of attorney, through which we assign someone we trust to make the decisions we can no longer make, is the better document, but it optimistically presupposes that we will each have with us at end of life “someone we trust.”

The further problem with such directives is that they can be construed as coercive: no one wants to be a “burden.” Few of us want to be perceived as considering our own lives more important than the ongoing life and prosperity of the family. Few of us will sit with a husband or wife or child in a lawyer’s office or a doctor’s office and hesitate to sign the piece of paper that will mean, when the day goes downhill, the least trouble for all concerned. For all the emphasis on the importance of “choice,” the only choice generally approved by the culture is to sign the piece of paper, “not be a burden,” die. Ronald Dworkin, in the meticulous discussion of euthanasia and the right to die that he undertook in Life’s Dominion, pointed out that the person whose care is expensive or burdensome becomes especially vulnerable to such perceived pressure, giving “autonomy” another dimension altogether:

He might prefer that a doctor not even raise the question of whether he would like to consider dying with medical assistance; he might prefer that the question never arise, or that he not even have the right to request death.2

Most of us find ways to avoid contemplation of this. Few of us could afford to think of what was happening to Theresa Schiavo as anything but her “personal choice,” a reasoned decision that she alone had at some point made. Many, accordingly, saw this as a case about the “right” to make their own decisions, the right, as one put it, “to have control over my own life and death.” The idea that life guarantees us such a right to “control,” or personal autonomy, has become the accepted rational, or secular, view. There can be, for those of secular mind, no sane disagreement. Once we had recast the case of Theresa Schiavo as one involving the right to die, then, there could be, from the “rational” or secular point of view, only one correct conclusion: that if she had expressed beyond any possibility of doubt a desire not to have her life prolonged in the condition she was now in, she had the “right” to have her feeding tube removed, which was to say the right to control over her own life and death.

As we have seen, the record showed no such indisputable expression. Yet even if we had managed to convince ourselves that this case involved the right to die, a problem remained. No one even casually exposed to religious teaching believes any such right exists. “So teach us to number our days,” the Episcopal litany asks, “so that we may apply our hearts unto wisdom.” This is a prayer for the wisdom to accept that death is inevitable, not a plea for control over its timing. “Control” itself, when it comes to the natural processes of life and death, is seen as an illusion, an error we learn through life to relinquish. This is by no means a view confined to Christian fundamentalists. It is a view shared by anyone whose ethical principles or general idea of how life works have at any point been touched by any of the world’s major religions.

That this was a situation offering space for legitimate philosophical differences seemed obvious. Yet there remained, on the “rational” side of the argument, very little acknowledgment that there could be large numbers of people, not all of whom could be categorized as “fundamentalists” or “evangelicals,” who were genuinely troubled by the ramifications of viewing a life as inadequate and so deciding to end it. There remained little acknowledgment even that the case was being badly handled, rendered unnecessarily inflammatory. There was an insensitivity in the timing of the removal of the feeding tube, which took place on the Friday before Palm Sunday, meaning that the gradual process of dying coincided with a week that for Christians has specifically to do with sacrificial suffering and death. “Oh come on,” someone said when this was mentioned on a cable show. There was a further insensitivity in the fact that the tube was removed at all. If the sole intention is to terminate feeding and hydration, there is no need to remove a gastric feeding tube. All anyone need do is stop plunging the formula into the tube. Hospitals routinely leave gastric tubes in place long after patients have progressed to oral feeding, because any later need to replace the tube (after the incision has begun to heal and scar tissue to form) can be difficult and require surgery. In this case, in the absence of some unusual circumstance that remained unreported, the sole purpose of actual removal would seem to have been to make any legally ordered resumption of feeding difficult to implement.

These were symbolic points, messages only, but messages make things happen. It was the physical removal of the tube that led to the perceived inexorability of the countdown. It was the convergence of that countdown with the holiest week in the Christian calendar that exacerbated the “circus,” the displays of theatrical martyrdom outside the hospice. It was the ability to dismiss the scene outside the hospice as a “circus” that made the case so ready a vehicle for the expression of “disgust.” Old polarizations took over. Differences became intolerances. Before the end of the first news cycle, those who believed the removal of the feeding tube to be a morally correct decision were being referred to as “murderers,” and those troubled by the decision, even those of no perceptible religiosity, as “fundamentalist freaks,” “evangelical mullahs.”

Some of what made the case so toxic was clear. The general claim those opposed to the termination of feeding seemed to be making, for the absolute value of life, could be applied as well to fetuses. (It could also be applied to the death penalty, but the politics of the pro-life movement have not encouraged this seamless-garment approach.) Yet this specific case, which had to do with whether a healthy woman whose brain was damaged to a catastrophic but still unestablished extent should or should not continue living, was never about abortion alone. It had at its core a virtually unthinkable but increasingly urgent question, one that few on either side of the debate wanted to address aloud.

The question began with the different ways in which we define a life worth living, but it did not stop there. The question had ultimately to do with whether or not there could be occasions when the broad economic and ethical interests of the society at large should outweigh any individual claim to either the most advanced medical attention (which Theresa Schiavo, outside the one procedure at UCSF in 1990, did not have) or indefinite care. This was the question no one on any side of the debate wanted to hear. This was the question conveniently muffled by talk about “right-to-die” and “murderers” and “mullahs,” about the “freak show,” the “circus.”

On the day Theresa Schiavo finally died it seemed clear that the unthinkable question could for the time being remain unthought. Freed of the need to avoid confronting the presence of an actual moral dilemma, all sides could reassume their usual fencing positions. All sides could imagine that by exposing the errors of the opposition, they had advanced the public dialogue. “This is going to be an all-out culture war,” someone said enthusiastically on MSNBC that evening. “Mr. Schiavo’s overriding concern here was to provide for Terri a peaceful death with dignity,” George Felos had said when he appeared before the cameras that day. “This death was not for the siblings, and not for the spouse and not for the parents. This was for Terri.” He had gone on to explain that those present in the room to witness the death that was for Terri (her brother and sister, who were with her earlier that morning, had been ordered to leave the hospice at the request of her husband) were himself, his associate Deborah Bushnell, Michael Schiavo, and Michael Schiavo’s brother Brian, who that evening would swear on Larry King Live that he could never forgive the Schindlers for what they had said about his brother and if anybody didn’t believe his brother had fulfilled Terri’s wishes, “they can pound sand.”

Meanwhile, on MSNBC, John Fund of The Wall Street Journal was being asked to assess “the political fallout” from the death with dignity that had taken place that morning in the presence of the husband who wanted the dying woman dead, his two lawyers, and his hothead brother. “We’re twenty months to the next election,” John Fund said, “so I think the political impact will be limited.”

  1. 2

    Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Knopf, 1993), p. 190.

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