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Having dealt at length with wrongful judicial denial of retained rights and infractions of the guardianship requirement, I want to revisit the statutes that definitively prove that Terri's death did not meet the standards of Florida's end of life legislation and was in fact judicially sanctioned murder in ethical terms, judicially sanction mercy killing in moral terms or judicially sanctioned assisted suicide in legal terms. I briefly touched on this in a previous post, but it was in a different context and the topic did not receive detailed treatment at that time.

Prior to 1999 an order to discontinue life-supporting procedures meant turning off a respirator. The electrical apparatus performed the air exchange of which the patient was not autonomously capable any longer. It thus performed the bona fide role of a life-extending apparatus because it prevented the systemic organ failure known as death that would otherwise have been in progress.

Advocates of the dying with dignity movement had rightly held that dying persons should be given the choice to not be prevented from dying by the operation of surrogate apparatus. When a respirator was turned off, the organ activity it had mimicked ceased and the interrupted dying process resumed. Death usually followed within minutes. The laws putting the use of a respirator at the option of the patient or, in cases of mental incapacitation, at the options of doctors and/or family found widespread support. Few did not understand the rationale of honoring the natural process of dying after all restorative medical treatment failed.

In 1999 the Florida Legislature amended its life-end statutes to include feeding tubes in the category of life-sustaining procedures and permitted their withdrawal as a means of facilitating natural death. Feeding tube removal is not as simple to rationalize though as was the turning off of respirators. Why? Because feeding tubes are widely used with patients who are not in danger of imminent death, nor are they electrical apparatus that serves as a surrogate for dysfunctional organs.

A feeding tube is a gravity-operated device that bypasses temporarily or permanently impaired swallowing musculature. Feeding tubes are often used in the aftermath of operations to allow parts of the patient's body to heal before resuming normal eating. On the other hand, there are countless patients in hospitals and nursing homes suffering from irreversible conditions or feebleness who are being kept alive by a form of force-feeding via the feeding tube, when left to their own devices their bodies would simply shut down for lack of desire for or ability to ingest food and water. The dying with dignity movement began to lobby state legislatures to make it possible for those sufferers to naturally die as well.

The 1999 amendment to the Florida statutes permitted the withdrawal of feeding tubes predicated upon the patient's expressed wishes. Avenues of court-ordered feeding tube withdrawal were also being explored for cases where the patient's deficit in consciousness made it impossible to convey consent. In all cases, however, the presumption was that the feeding tube served as an artificial hindrance to the body's readiness to die. In most cases of feeding tube withdrawal intravenous hydration and comfort measures were provided to alleviate unnecessary suffering by the patient.

Despite the inclusion of feeding tubes under the definition of life-prolonging procedures, Florida law does not permit medical hastening of death by other means such as drugs or the withholding of oral feeding and/or hydration. If a patient is capable of ingesting liquids by mouth, there is no provision in the law to permit the discontinuation of oral hydration. The assumption is that the presence of a feeding tube automatically implies the patient's inability to hydrate by mouth. This is not always the case, and it was not the case with Terri.

Florida law declares anything other than the authorized discontinuation of life-prolonging procedures mercy killing or euthanasia and forbids it:

"765.309 Florida Statute: Mercy Killing or Euthanasia Not Authorized; Suicide

Distinguished. -- (1) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act of omission to end the life other than to permit the natural process of dying."

The statute says that ONLY the natural process of dying is to be permitted. It does not allow a "deliberate act of omission" to expedite death. What does this mean in the context of a feeding tube removal? It means that if anything has to be done or omitted in addition to the feeding tube removal, it is forbidden and will be viewed as assisted suicide or mercy killing.

This includes the withholding of nutrition or hydration, which the patient is able to ingest without the use of a feeding tube. It must be remembered that the feeding tube is the critical item here. The law's assumption is that the natural process of dying was interrupted through the insertion of a feeding tube and would resume upon its removal, just as is the case with turning off a respirator. This assumption fails when the patient does not depend on the feeding tube as a life-prolonging procedure.

The deliberate refusal to provide oral hydration to a patient capable of receiving it thus falls under the prohibition of "any affirmative or deliberate act of omission to end the life," and is prohibited. Such an act cannot be construed as meaning to "permit the natural process of dying." Instead, it is an act of deliberate omission designed to bring about a death that would not otherwise have occurred.

Although it is possible that the patient may die from malnutrition despite continued oral hydration, the law as it stands does not condone the deliberate withholding of it. The law only condones honoring the patient's wish to not have nutrition and hydration forced into his or her body by means of a feeding tube. The law considers it suicide if a person dies from deliberately refusing to eat or drink. By extension, the law considers it assisted suicide if someone helps a person to accomplish dying in that way. The law considers it murder if food and water are withheld from a person who does not reject it and does not wish to die.

"(2) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide."

The law makes it clear that only NATURAL DEATH resulting from the withdrawal of life-prolonging procedures is covered by the statute respecting the patient's wishes, and that any additional measures to hasten a desired death are SUICIDE and prohibited.

What does all of this mean when applied to Terri's situation? It is known that Terri was capable of swallowing her own saliva because there was no evidence of drooling. Terri's full swallowing capacity was not known because her guardian Michael Schiavo forbade the administration of a standard swallowing test, even after it was recommended by the second guardian ad litem, Jay Wolfson. It is also known from affidavits by nurses that Terri had been previously fed by mouth and that the feeding tube had been inserted at her guardian's orders. At the very least, Terri was at the time of her feeding tube removal capable of swallowing fluids in small quantities.

Terri died from organ failure brought about by dehydration. This was NOT A NATURAL DEATH since it involved the "affirmative or deliberate act of omission to end the life," i.e. the withholding of fluids that her body was capable of ingesting by mouth.

If we accept that Terri had indeed expressed the wish to die, then the act of depriving her of oral hydration must be considered assistance with suicide, according to the letter and intent of the statutes. Did Terri express the wish to die? Judge Greer ruled that she did, but what was this ruling based on? It was based on Michael Schiavo's statement that Terri had told him sometime in the mid-1980s that she would not want to be kept alive "by anything artificial."

Is this statement equivalent to an expression of the desire to die? No. It only means that Terri did not want to be kept alive artificially. At the time of her alleged statement that meant a respirator. Feeding tubes were at that time NOT considered life-prolonging procedure. Terri is supposed to have made this statement after watching a TV hospital series. At that time the turning off of respirators was already permitted by law, but the possibility of withdrawing a feeding tube was not. If Terri's alleged statement is put into context, it means: "If I am ever on a respirator, have it turned off."

Terri knew nothing of the Florida statute amendment of 1999 that made feeding tubes legally removable as well. It is not possible to assume that Terri could have intended "If I am ever fed through a feeding tube, have it withdrawn." She could not have imagined such a scenario in the mid-1980s, because that was simply not done. It is safe to assume that the only scenario Terri truly rejected was to be kept alive artificially by means of a respirator. She never expressed a desire to be made to die from lack of water and food. If this is true, then the subsequent denial of oral hydration from which she died must be seen as murder.

However, Judge Greer ruled that Terri's wish DID include having her feeding tube withdrawn and we are bound to accept this. Even so, Judge Greer's finding could not include the idea that Terri also wanted to be refused nutrition and hydration by mouth. Why not? Because Florida law does not permit it. We are therefore forced to conclude that Terri's death was the result of illegally assisted suicide. Judge Greer ruled that Terri wanted to die and the people that refused her oral hydration illegally helped her accomplish a death other than the natural death permitted by the statutes. This is the most charitable view of what was done. Terri's death was not the result of the feeding tube removal but of the refusal, albeit desired, to give her fluids by mouth.

In the view of most people not familiar with the sordid chronology of Michael Schiavo's treatment of his disabled wife, it was best "to let her go." Few people took the time considering the mechanics of this. They simply assumed that Terri was "a vegetable" and was being kept alive by some sort of machine. Others realized that she was capable of living, but did not think that she would want to live with her condition. In this mindset the act of "letting her go" translated into some sort of vaguely imagined mercy killing, colloquially put "putting her out of her misery." This is what Florida law says about mercy killing.

"458.326 Florida Statute: Intractable Pain; Authorized Treatment. -- (4) Nothing in this section shall be construed to condone, authorize, or approve mercy killing or euthanasia, and no treatment authorized by this section may be used for such purpose."

What does this say about the people who refused Terri oral hydration after her feeding tube was removed? It says that they perpetrated the prohibited act of euthanasia. This includes the judge who ordered it, the medical personnel that executed it, the guards that prevented interference with it, Michael Schiavo and George Felos who desired it and the State of Florida that permitted it.

As I said before, the most likely legally sustainable interpretation of what happened is that Terri's death was the result of an assisted suicide. Will any of the participating individuals ever be taken to task for it? I don't know, but if they do, this is the pertinent statute:

"782.08 Florida Statute: Assisting Self-Murder. -- Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in s.775.082, s. 775.083 or s.775.084."