Terri Schiavo and our Moral Confusion

In thinking about the meaning of the tragedy of Terri Schiavo's life and the decisions it has generated, I spent much of Good Friday reading a number of articles by bioethicists, theologians, and various columnists. The entire time, I was haunted by the title of an essay by Stanley Hauerwas, who has written a lot about the moral nature of our care for the severely mentally retarded and more generally of those whose lives are incomprehensible and (thus?) burdensome to us. In "Must a Patient Be a Person To Be a Patient? Or, My Uncle Charlie Is Not Much of a Person But He Is Still My Uncle Charlie," Hauerwas challenged the conventional framework that guides many debates in bioethics: the definition of what constitutes personhood. According to this framework, to be alive and to be human is not sufficient to make a moral claim for care and protection. One must also be a "person," a status (in both beginning-of-life and end-of-life settings) that is usually defined in terms of capacities for reason and volition. Leon Kass, in Life, Liberty and the Defense of Dignity: The Challenge for Bioethics (Encounter, 2002), observes that the Western tradition of conferring dignity and respect on persons, on "rational beings" capable of "genuine moral agency," has preserved the unique value of human life by distinguishing it from beasts and machines. But, as we are painfully discovering on many issues addressed by bioethicists, it is an inadequate framework, appropriate perhaps for the Hellenistic view of human nature, but not rich enough for the account preserved by Jews and Christians in the account of Creation, and extended by Christians in reflection on the reality of the Incarnation. As Kass notes, "Precisely because it dualistically sets up the concept of 'personhood' in opposition to nature and the body, [this view of human dignity] fails to do justice to the concrete reality of our embodied lives—lives of begetting and belonging no less than of willing and thinking. . . . Precisely because 'personhood' is distinct from our lives as embodied, rooted, connected and aspiring beings, the dignity of rational choice pays no respect at all to the dignity we have through our loves and longings—central aspects of human life understood as a grown togetherness of body and soul. Not all of human dignity consists in reason or freedom." [page 17] Reason and freedom are valued in the Biblical account of human nature. But in the modern, Enlightenment account that has shaped our political institutions and much of our thinking about the contours of caring for one another, reason and freedom are pretty much all there is to a person rightly so called. The modern picture of the human cannot account for our nature as embodied spirits created for and constituted by relationships of love. In his book Bioethics: A Primer for Christians (Eerdmans, 2nd edition 2005), Gilbert Meilaender reflects on how Christian thinking should challenge the common assumptions of our culture about "personhood": "[O]ur personal histories—precisely as histories of embodied spirits—do not require the presence of 'personal' capacities throughout. Our personal histories begin in dependence—first within our mother's womb and then as newborns. Often our life ends in the dependence of old age and the loss of capacities we once had. Personhood is not something we 'have' at some point in this history. Rather, as embodied spirits or inspirited bodies, we are persons throughout the whole of that life. One whom we might baptize, one for whom we might still pray, one for whom the Spirit of Christ may still intercede 'with sighs too deep for words' (Rom. 8:26)—such a one cannot be for us less than a person. Dependence is part of the story of a person's life." [2nd edition, page 6] Meilaender concludes this section of his book with an observation that applies to Terri Schiavo's situation most particularly: "Those human beings who permanently lack certain empowering cognitive capacities—as well as all human beings in stages of life where those powers are absent—are simply the weakest and most needy members of our community. We can care for them and about them only by acknowledging the living bodily presence that they have among us—seeking to discern in their faces the hidden spirit, the call to community that their bodily presence constitutes, and the face of Christ." [ibid.] In an article written for The Weekly Standard and posted online on Good Friday, Eric Cohen, the editor of The New Atlantis, also reflects on moral framework questions. "For all the attention we have paid to the Schiavo case," Cohen insists, "we have asked many of the wrong questions, living as we do on the playing field of modern liberalism." Like Kass and Meilaender, Cohen is unhappy with the liberal idea that volition is the defining characteristic of the human: "[T]he real lesson of the Schiavo case is not that we all need living wills; it is that our dignity does not reside in our will alone, and that it is foolish to believe that the competent person I am now can establish, in advance, how I should be cared for if I become incapacitated and incompetent. The real lesson is that we are not mere creatures of the will: We still possess dignity and rights even when our capacity to make free choices is gone; and we do not possess the right to demand that others treat us as less worthy of care than we really are." Cohen observes that liberalism's celebration of liberty as autonomy, as independence, distorts the meaning of the human and establishes "a set of assumptions about what makes life worth living and thus worth protecting" according to which we regard "incompetence itself as reasonable grounds for assuming that life is not worth living." Cohen thinks that medical ethics organized around the single theme of autonomy is flawed. "[T]he autonomy regime, at its best, prevents the worst abuses—like involuntary euthanasia, where doctors or public officials decide whose life is worth living. But the autonomy regime, even at its best, is deeply inadequate. It is based on a failure to recognize that the human condition involves both giving and needing care, and not always being morally free to decide our own fate." The article is posted online here. In watching and reading the news coverage of Terri Schiavo's case, I can't remember hearing the word "euthanasia" once. And yet it should be clear that by withdrawing food and water from her, she is euthanized, not simply being "allowed to die." I doubt that a parent who withheld food and water from their children, or a warden who withheld food and water from a prisoner, could be excused from culpability on the grounds that they were simply allowing someone to die. In none of these cases, including Terri Schiavo's, is there a dying person, just a dependent one. Two articles from First Things help sort through the issues involved in distinguishing killing from allowing to die. The first, "Always to Care, Never to Kill: A Declaration on Euthanasia," was produced by the Ramsey Colloquium, a group of Jewish and Christian theologians, ethicists, philosophers, and scholars that met periodically to consider questions of ethics, religion, and public life. The statement was prepared at a time when many states were considering laws liberalizing the practice of euthanasia and physician-assisted suicide, and its principal theme was declared quite concisely: "In relating to the sick, the suffering, the incompetent, the disabled, and the dying, we must learn again the wisdom that teaches us always to care, never to kill. Although it may sometimes appear to be an act of compassion, killing is never a means of caring." Later in the declaration, a warning that has relevance to Terri Schiavo's case was offered: "Once we cross the boundary between killing and allowing to die, there will be no turning back. Current proposals would legalize euthanasia only for the terminally ill. But the logic of the argument—and its practical consequences—will inevitably push us further. Arguments for euthanasia usually appeal to our supposed right of self-determination and to the desirability of relieving suffering. If a right to euthanasia is grounded in self-determination, it cannot reasonably be limited to the terminally ill. If people have a right to die, why must they wait until they are actually dying before they are permitted to exercise that right? Similarly, if the warrant for euthanasia is to relieve suffering, why should we be able to relieve the suffering only of those who are self-determining and competent to give their consent? Why not euthanasia for the suffering who can no longer speak for themselves? To ask such questions is to expose the logical incoherence and the fragile arbitrariness of suggested 'limits' in proposals for legalized euthanasia." The article is available online here. Finally, the August/September 2004 issue of First Things featured an exchange between Robert D. Orr (director of Ethics for Fletcher Allen Health Care and Professor of Family Medicine at the University of Vermont College of Medicine) and Gilbert Meilaender. The exchange dealt explicitly with the question of the use of feeding tubes for patients in a "permanent vegetative state." Orr and Meilaender both agree that such patients (like Terri Schiavo) are not dying. Given that fact, Meilaender discusses this question: "Under what circumstances may we rightly refuse a life-prolonging treatment without supposing that, in making this decision, we are doing the forbidden deed of choosing or aiming at death?" "The answer of our medical-moral tradition has been the following: we may refuse treatments that are either useless or excessively burdensome. In doing so, we choose not death, but one among several possible lives open to us. We do not choose to die, but, rather, how to live, even if while dying, even if a shorter life than some other lives that are still available for our choosing. What we take aim at then, what we refuse, is not life but treatment—treatment that is either useless for a particular patient or excessively burdensome for that patient. Especially for patients who are irretrievably into the dying process, almost all treatments will have become useless. In refusing them, one is not choosing death but choosing life without a now useless form of treatment. But even for patients who are not near death, who might live for a considerably longer time, excessively burdensome treatments may also be refused. Here again, one takes aim at the burdensome treatment, not at life. One person may choose a life that is longer but carries with it considerable burden of treatment. Another may choose a life that is shorter but carries with it less burden of treatment. Each, however, chooses life. Neither aims at death. "It is essential to emphasize that these criteria refer to treatments, not to lives. We may rightly reject a treatment that is useless. But if I decide not to treat because I think a person's life is useless, then I am taking aim not at the treatment but at the life. Rather than asking, 'What if anything can I do that will benefit the life this patient has?' I am asking, 'Is it a benefit to have such a life?' If the latter is my question, and if I decide not to treat, it should be clear that it is the life at which I take aim. Likewise, we may reject a treatment on grounds of excessive burden. But if I decide not to treat because it seems a burden just to have the life this person has, then I am taking aim not at the burdensome treatment but at the life. Hence, in deciding whether it is appropriate and permissible to withhold or withdraw treatment—whether, even if life is thereby shortened, we are aiming only at the treatment and not at the life—we have to ask ourselves whether the treatment under consideration is, for this patient, either useless or excessively burdensome. "Is the treatment useless? Not, let us be clear, is the life a useless one to have, but is the treatment useless? As Dr. Orr notes—quite rightly, I think—patients 'can live in this permanent vegetative state for many years.' So feeding may preserve for years the life of this living human being. Are we certain we want to call that useless? We are, of course, tempted to say that, in deciding not to feed, we are simply withdrawing treatment and letting these patients die. Yet, as Dr. Orr also notes, these patients 'are not clearly dying.' And, despite the sloppy way we sometimes talk about these matters, you cannot 'let die' a person who is not dying. It is hard, therefore, to make the case for treatment withdrawal in these cases on the ground of uselessness. We may use those words, but it is more likely that our target is a (supposed) useless life and not a useless treatment. And if that is our aim, we had better rethink it promptly."

I suppose you have a better way to resolve the case? Care to share with the class?

Well, for starters, I would suggest that oral statements should generally not be "clear and compelling" in the absense of anything to authenticate them (such as a videotape, etc.) It is trivial for an unscrupulous person to attribute to people things they never said. There may be a few cases where an oral statement could constitute clear and compelling evidence, but only if all of the following apply:

The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible.
There is consensus about what was said and what was meant, the statements were clearly intended to serve as a living directive, and the claimed meaning is plausible.
There is a logical reason why the person making the statement was unable to personally put it into tangible form.
The statement is disclosed to people who can officially record it as quickly as practical.

An example of a case where purely oral statements might constitute clear and compelling evidence would be a train wreck, where an injured passenger tells others of his wishes prior to losing conciousness. In such a case, if the other passengers were to report what the passenger said as quickly as practical to officials, I would say such statements could be regarded as 'clear and compelling' evidence:

Unless the other passengers conspired to cause the crash, they would seem an unlikely group to conspire to invent a story.
There would be little confusion about the person's statements or the purpose thereof.
The person's decision to give the statement orally rather than writing or recordig it would be clear and logical given exigent circumstances.
The witnessess to the statement would be able to report it in timely fashion.

As you can see, I wouldn't outlaw all non-recorded oral statements, but I would only allow them in places where there would be no reason to doubt them. Let's see how Terri's "wishes" stack up:

Her wishes were heard by an openly-adulterous husband, his brother, and his sister-in-law. One of them had a very clear and obvious conflict of interest, and conspiracy by the others is highly plausible.
The three people witnesses Terri's claim that Terri spoke to each of them at a different time; there is thus zero corroboration. There is no particular reason to believe Terri's statements--if she made them--were meant to be enforceable as a living will. At the time Terri's statements were made, hydration by any means was not considered life support and therefore a claim that she intended them to justify the removal of same would seem implausible.
There is no logical reason why, if Terri wanted her supposed wishes carried out, she could not have written them down.
The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made.

Do you think my criteria for accepting oral statements are too rigid? Terri's siblings' hearsay testimony fails all of them.

Well. That took some some work. Thank you for your effort.

Naturally, my first reaction to your 4-point criteria is that it was designed around the Terri case (ie., working backwards to achieve the desired result). Basically, it does nothing more than detail your version of "clear and convincing".

For example, let's take your #1. "The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible."

Now read just the "Saturday, April 2, 2005 of this link to see that Judge Greer evaluated the oral evidence with this in mind.

"In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence."
-- from the above link

It's an interesting link. On your #2 about removing tubes as implausible:

"... and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise ..."

I don't agree with your #3. I don't think there needs to be a reason.

#4 "The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made."

True. But why would they be recalled any sooner. For what purpose? It wasn't until Michael requested the court to determine Terri's wishes that it was necessary to recall Terri's statements.

As to the charge that by waiting seven years, Michael was not acting in good faith, Judge Greer said it the best: "That assertion hardly seems worthy of comment other than to say that he should not be faulted for having done what those opposed to him want to be continued."

I don't agree with your #3. I don't think there needs to be a reason.

If someone is capable of expressing their wishes in a tangible medium and fails to do so, how serious can they be about having those wishes carried out?

A requirement that required all advance directives to be transcribed in tangible media, period, could impose an undue burden on people who were unable to thus record their wishes, but it would not seem to impose much burden on those who were able to. Explain, therefore, why you would think it unreasonable to require that anyone who is capable of transcribing their wishes in a tangible medium must do so for them to be carried out.

There is nothing wrong with being pro-life. I'm pro-life. But this was not a euthanasia case.

Let me ask you. If Terri's wishes (not to live in a brain damaged state supported by artificial means) were in writing instead of verbal, would you have objected to the carrying out of her wishes?

My guess is that 99% of the public would not object. That's what Living Wills and Durable Powers of Attorney do.

Unfortunately, Terri did not have a Living Will. Unfortunately, Terri's parents wanted her to live.

Unfortunately, as a result, the extreme right wing right-to-life groups went into full propaganda mode and called it euthanasia and murder.

#4 "The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made."

True. But why would they be recalled any sooner. For what purpose? It wasn't until Michael requested the court to determine Terri's wishes that it was necessary to recall Terri's statements.

The only reason I can see to allow any statements at all that are not recorded in a tangible authenticable medium is that exigent circumstances may arise wherein such recording is not feasible. Requiring that any oral statements be tangibly recorded and dated at the earliest opportunity helps considerably in establishing their credibility.

Suppose, for example, that one of Michael's siblings had written Terri's wishes on a sheet of paper at the time she made them, folded it up, self-addressed it for post-office pickup, stamped it, and took it to the post office for a postmark. Assuming that the postmark, paper, and ink all checked out, there would have been a lot less controversy about Terri's "wishes". Although it would be plausible that Michael and his relatives could have invented the 'wishes' in 1997 since they had a clear craven motive to do so, it would be far less clear why any of them would invent such wishes in 1988.

Further, even if one assumes people are honest, people's memories aren't perfect. A person's recollection of what someone else said a decade ago is often apt to be inaccurate even if the person truthfully says what they remember. If people's memories weren't imperfect, why would they ever take notes of anything?

For example, let's take your #1. "The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible."

Now read just the "Saturday, April 2, 2005 of this link to see that Judge Greer evaluated the oral evidence with this in mind.

I just read through the piece you linked and I didn't see any recognition and rebuttal of the possibility that the Schiavos made the whole thing up. It doesn't take much of an imagination to dream up plausible reasons for the Schiavos to invent Terri's supposed statements out of whole cloth. They represent a self-selected group of people who could easily share a common craven interest.

I won't fault you if you think the Schiavos are telling the truth, but I really must question your judgement if you don't think it at least plausible that they might be lying.

By comparison with the train scenario: suppose the person's oral wishes witessed by the only two people who were sitting close to him, who had no relationship to him or each other prior to boarding the train, and these people report the person's wishes to arriving medical personnel. What plausible motive would two complete strangers have to lie about a person's oral advance directives? I'd have to stretch pretty far to imagine one that would make any sense at all.

Note, btw, that the situation would be far different if two supposed strangers were to emerge at some later time and claim the person made his statements. In that case, other conspiracy theories become plausible. For example, a relative who wanted the incapacitated passenger's estate could have tracked down and talked to the passengers who had sat nearest him. Even if it could never be proven that a relative in fact did so, the fact that such a thing is plausible should be sufficient to prevent the testimony from being regarded as 'clear and compelling'.

I understand what you're saying, and I agree it would make things a heck of a lot easier on everyone.

But why would I write down some comment my friend made to me about some medical show we're watching? Who does that? Especially the post office thing. (But isn't hindsight great? It makes us look so smart and organized.)

And what about this: In January, 1989, Michael writes down that Terri (with a $10 million life insurance policy) would wish to die. In April, 1989, Scott writes down the same. In June, so does Joan.

In January of 1990, Terri becomes brain damaged, cause unknown.

Since it's in writing though, you're comfortable with "pulling the plug" and authorizing the $10 mil, huh?

Excuse me, but you'd be screaming to high heaven. Worse than you are now!

1) If oral is acceptable (ie., meets your criteria 1,2&4), then why even bother?

Because (1) anyone serious about such things would want to minimize the likelihood of their desires being misremembered or misinterpreted, and written statements are much better in that regard than oral statements; (2) One of the key tests in deciding whether an oral declaration should be accepted is whether it's plausible that supposed witnesses are making it up. The sooner a statement is recorded in tangible form after its supposed utterance, the less plausible it would be for it to be simply invented. If a witness to an oral declaration should transcribe it in tangible form as soon as practical, why not just have the declarant himself do it, if practical?

2) Grampa, worth $20 million, writes on a scrap of paper that he wants to live no matter what the cost. How long would it take the family's attorney, being paid 30%, to invalidate it? 10 minutes?

On what basis would you suggest that it be invalidated?

You wouldn't, because if your friend wanted to make an advance directive, your friend would do so in writing or some other tangible medium. If your friend fails to do so, that would suggest your friend wasn't all that serious about his wishes. If you thought your friend was serious about his wishes, you should get some paper and ask him to write them down.

And what about this: In January, 1989, Michael writes down that Terri (with a $10 million life insurance policy) would wish to die. In April, 1989, Scott writes down the same. In June, so does Joan. In January of 1990, Terri becomes brain damaged, cause unknown.

If those things had happened and Terri became incapacitated as a consequence of some event the Schiavos could not plausibly have foreseen or caused (e.g. a train wreck), the fact that the statements were written down as they were would make them more believable. Had the statements been so written in the extant case, it would have justified more investigation into the cause of the supposed "collapse".

To put it another way: it would be plausible for the Schiavos to conspire if they'd expect to have something to gain by it. For them to note for themselves Terri's supposed wishes would seem strange but if they had no way of knowing she'd be incapacitated the most logical explanation would be that Terri in fact said the things claimed. If Terri's incapacitation was something the Schiavos could have foreseen or caused, then conspiracy becomes more plausible.

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