March 30, 2005, 8:02 a.m.
The Court of the Problem
Terri Schiavo and Supreme precedent.

By Matthew J. Franck

As of this writing, the killing of Terri Schiavo has not been consummated, but it could be at any moment. There is no "letting her die" going on here, any more than we would be "letting" an infant die if we left him in his playpen and deprived him of food and water for 12 days. While debates have raged over whether such a death is euphoric or agonizing, humane or cruel, we should not blink at the fact that a killing is exactly what we have watched ever since Schiavo's feeding tube was removed on March 18. Much of the blame for this horror can be assigned to the Florida legislature that enacted some of the legal precepts undergirding the decisions made in the Schiavo case; to the Florida judges who used and abused those precepts; and to the federal judges who defied the instructions of the Congress to reexamine the case de novo. But little attention has been paid to the U.S. Supreme Court's contribution to the killing of Terri Schiavo — a contribution that began the very year that she suffered the collapse that left her brain-damaged.

That year, 1990, the Court decided the case of Nancy Cruzan, whose medical circumstances were strikingly similar to those of Terri Schiavo: Injured in a car accident in 1983, she was subsequently diagnosed as being in a "persistent vegetative state" (PVS), with no hope of recovery, and she was being fed and hydrated via a gastrostomy tube inserted directly into her stomach. The contending parties in Nancy Cruzan's case were her parents, who wished her feeding tube withdrawn, and the state of Missouri, whose laws — as interpreted by the state supreme court — required "clear and convincing evidence" of an unambiguous intent on the part of the patient in such a state before a presumption in favor of preserving life could be overcome. The state's high court held against the withdrawal of Cruzan's feeding tube, and the U.S. Supreme Court (by the barest 5-4 vote) affirmed that ruling, holding that it was consistent with due process for a state to place a heavy evidentiary burden on anyone who claimed to enunciate the desire for death on behalf of an incompetent person.

At first glance the Cruzan decision may have seemed to be a pro-life ruling. After all, the immediate effect was to keep Nancy Cruzan alive, and to endorse, in the law, a state's presumption in favor of life. The hysterical ire of four dissenting justices who wished to make death an easier choice seemed to bolster the good-news interpretation of Cruzan at the time. And the Court's opinion by Chief Justice William Rehnquist did hold that "a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life."

The sentence I just quoted did not end there, however, but continued as follows: "to be weighed against the constitutionally protected interests of the individual." And therein lies the twofold failure of Rehnquist's reasoning in this case.

"Principle" "Interest"

What is the "constitutionally protected interest" that is to be weighed in the balance against the state's interest in life? Here is Rehnquist's second error, and the one that sets us on the road to the deathwatch in Pinellas Park, Florida. Holding, on the thinnest basis in precedent, that under the Fourteenth Amendment "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment," the chief announced with astonishing casualness that "for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition."

Think about this for a moment. Can anyone name a case in which a competent person, who was not already dying of an underlying disease or injury, chose to refuse food and water in order to bring about his death? It seems unlikely, since anyone who was aware, able to communicate, and not dying could hardly be expected to choose a mode of death so drawn out — and even less could such a patient be expected to "stay the course" without relenting and begging for water and food. Indeed, a patient who was aware, able to communicate, and not dying might well find his sanity — i.e., his competence — questioned if he made the request.

Perhaps Rehnquist had in mind those cases of the terminally ill — those who are dying — "turning their faces to the wall" and hastening an inevitable death by refusing food and water (nourishment that may itself be the cause of pain and suffering in the end stages of some diseases, for instance). But that was not the case he had before him. Nancy Cruzan was not dying, and could not be expected to die for years to come unless she were deprived of food and water. She did in fact die, after twelve days of starvation and dehydration, about six months after the Supreme Court's ruling, when the high standards of the Missouri courts were met in subsequent proceedings. Hugh Finn, starved and dehydrated to death in Virginia over the course of eight days in 1998, was not dying either, before his tube was pulled. And, of course, Terri Schiavo was not dying before March 18.

So the chief justice was announcing a "right" to starve oneself to death — a right of which no competent person otherwise situated like Cruzan, Finn, or Schiavo (i.e., physically and even mentally disabled but not dying) could be expected to avail himself. In light of such a patent absurdity, for whom, then, was this "right" actually conjured into being? Why, not for the competent at all, but for the incompetent, of course, so that others may act on their behalf and bring about the death that we know for a certainty they would not choose if they were competent at the time the death was to commence. Only the incompetent are fit subjects for such a death, for only they are incapable of articulating a choice and will have such a death chosen for them, and only they will go more or less quietly, having no ability to beg us for a drop or a morsel.

In short, Rehnquist's preposterously invented "right" was the Court's way of blessing a practice called "substituted judgment": the process, varying from state to state, by which parents, spouses, or other close kin establish to a court's satisfaction either that when the patient was competent, he did express a desire not to live as an otherwise healthy incompetent, or (in states a bit more lax) that if he had thought about it when he was competent, it would have been his desire not so to live. This legal practice may have made sense at first, beginning as it did with the cases of patients kept alive on respirators or other "life-support machines" who would die very rapidly of underlying causes as soon as these measures ceased, or whose suffering could be brought to an end by a simple "do not resuscitate" order in the event of a cardiac arrest. But thanks to statutes and judicial decisions, "substituted judgment" in many states in 1990 was already moving toward the withdrawal of food and water from otherwise physically healthy patients, and Rehnquist's "right to refuse lifesaving hydration and nutrition" gave this fateful step a veneer of principle putatively derived from the U.S. Constitution.

Deadly Decision

Scalia was also alone on the Court that day in 1990 in calling killing by its right name. In an argument that has been replayed in macabre echoes in the Schiavo case, Scalia wrote that "[s]tarving oneself to death is no different from putting a gun to one's temple as far as the common-law definition of suicide is concerned." And if starving oneself was suicide, starving another was homicide: Scalia cited late 19th-century precedents holding that "[i]n the prosecution of a parent for the starvation death of her infant, it was no defense that the infant's death was 'caused' by no action of the parent but by the natural process of starvation, or by the infant's natural inability to provide for itself." As for those who think the critical factor is that Terri Schiavo is in a "persistent vegetative state" or that "she would never have wanted to live that way" (and here we can assume those much disputed "facts" for the sake of argument), Scalia quoted another precedent from that era holding that assisted suicide "is declared by the law to be murder irrespective of the wishes or the condition of the party" who is sent to his death. Such precedents put paid to the notion that the due process clause of the Fourteenth Amendment carries, hidden in its recesses, some longstanding traditional "right" to dehydrate oneself to death. And they remind us that we were once a more enlightened country than we are today, at least in this respect.

Scalia disposed handily of another bit of sophistry that has been bandied about by the "let her die" crowd in the Schiavo case. Stepping outside the purview of a judge for just a moment to speak to legislators directly (a futile gesture, since the Court had just announced a "right" he rejected), he wrote that "the intelligent line does not fall between action [e.g. the gun] and inaction [the withdrawal of a feeding tube] but between those forms of inaction that consist of abstaining from 'ordinary' care and those that consist of abstaining from 'excessive' or 'heroic' measures." It is just so in Terri Schiavo's case: No respirator can be "unplugged" for a quick death caused by her body's inability to perform its basic functions. She was the recipient of no extraordinary measures beyond hydration, nutrition, and hygiene. Her death is being brought about by the failure to meet these ordinary standards of care.

As Terri Schiavo's case reveals, the effects of Cruzan have been catastrophic. No state, in the last 15 years, has been able to legislate in the traditional, fully protective pro-life fashion that Justice Scalia described, even if it wanted to. Scalia's opinion was a requiem for the unqualified protection of innocent life in American law. In place of the tradition for which he spoke has been nothing more than variations on a pro-death policy. Rehnquist's "right" to "refuse" nutrition and hydration is the cause of this trend, even though (or actually, because) it stands in practice only for the death of the infirm who cannot speak for themselves. And while legislative action was dealt a fatal blow, and public opinion was insidiously drawn into the acceptance of such a regime, the practical effect in America's hospitals and hospices has almost certainly been deaths in great numbers, under the rubric of "substituted judgment." We know Terri Schiavo's case thanks to her indefatigable, loving parents, the Schindlers, who have fought her husband Michael Schiavo over her fate. But most of us (myself included) have no idea how many Terri Schiavos are sent to eternity in just this fashion every year without anyone noticing, because no family member challenges the exercise of "substituted judgment" by their legal guardians. Who knows how many others are quietly dehydrating to death right now, with no crowds outside their hospitals?

In the years since Cruzan, the Supreme Court has revisited these issues only once, in the 1997 companion cases of Washington v. Glucksberg and Vacco v. Quill. In these cases from Washington state and New York, competent, suffering patients quite reasonably argued that the Cruzan precedent should be extended into a "right" to take more active measures to kill oneself, with the assistance of a physician who could ease and hasten one's passing. Understandably, none of the awake, aware plaintiffs in these cases wished to die as Terri Schiavo is now dying. Better to go by the needle, no? But Chief Justice Rehnquist was having none of it, though his reasoning was ludicrously weak. Speaking of the "decision to commit suicide with the assistance of another" and the "decision to refuse unwanted medical treatment," he asserted that "the two acts are widely and reasonably regarded as quite distinct." That they may be, until we come to the case where "unwanted medical treatment" is nothing more than food and water for an otherwise viable human being. In that case, the distinction collapses entirely — or as Rehnquist more squeamishly put it, "in some cases, the line between the two may not be clear."

In the "assisted-suicide" cases, Rehnquist spoke of the state's reasonable fears that "permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia," and that admitting even a "limited right to 'physician-assisted suicide'" could lead to patterns of conduct "extremely difficult to police and contain." But isn't that just where we are now — but only with the helpless patients, not the ones who can speak for themselves? We seem in fact to have skipped entirely over the intervening step of voluntary euthanasia and gone straight to the involuntary. Why, then, cling to the drawn-out process of death by withdrawal of sustenance? Why not embrace the quicker, undeniably more humane method of lethal injection — the preferred way to go for failing household pets and death-row murderers alike?

The answer is that so far, the culture of death in America has suffered from a failure of nerve. I leave it to readers to ponder the difference between the deaths of their cats and dogs who were "put down" and the death of Terri Schiavo, and say whether this failure of nerve has been a good or a bad thing for the country's PVS patients. But there may yet be hope for the culture of life, in the lies we tell ourselves as we kill the weak among us. One of the most astounding falsehoods was told by the Virginia courts that endorsed the killing of Hugh Finn seven years ago. Desperate to deny what everyone knows, the courts of the Old Dominion held that a PVS patient

is, as a matter of law, in the natural process of dying within the meaning of [Virginia statutes] and . . . the withholding and/or withdrawal of artificial nutrition or hydration from a person in a persistent vegetative state merely permits the natural process of dying and is not mercy killing within the meaning of [those same statutes].

No one who has ever seen Terri Schiavo — even those who believe she is PVS and beyond hope of recovery — can honestly believe a word of such nonsense for a moment. We will not soon become the Netherlands, while such a phalanx of lies marches through our judicial reports. But as Lincoln might put it, this house divided by the splitting of unsplittable differences cannot stand. We must sooner or later "become all one thing, or all the other" — a nation that embraces life, or one that shrugs at death.

— Matthew J. Franck is professor and chairman of political science at Radford University.