Schiavo Thoughts: Feeding Tubes
Before I post about this morning's ruling from the Eleventh Circuit, which you can read here, I'm going to offer some thoughts on an issue that has been the subject of countless emails I've received: feeding tubes.
Some people believe that feeding tubes are different from ventilators and other machines that keep us breathing, or machines that make our hearts beat. Some people just seem uncomfortable that removing those other devices leads to an expeditious death, whereas removing or declining to insert a feeding tube -- when a patient cannot otherwise ingest food and water -- leads to a slow death. Some assume that death is painful.
I don't want to comment on the morality surrounding feeding tubes and their use or nonuse. This is a legal blog, so I'm going to offer a few legal observations in this area.
First, a Florida law enacted in 1999 makes it clear that the "life-prolonging procedures" a person may refuse include "artifically provided sustenance and hydration." This point is made on the Info Page I created to help explain the law at issue here.
But numerous people have pointed out that this law was passed by the Florida Legislature and signed by Governor Bush only in 1999 -- years after Terri's collapse and even longer after Terri made whatever statements she made about such things. They contend that this 1999 law shouldn't apply to Terri.
Let's take a step back. Statutes are one form of law in Florida, but there is another form of law that's higher: the Florida Constitution. In 1980, Florida's citizens amended Florida's constitution to add a right of privacy to Floridians' fundamental rights. The Florida Supreme Court addressed this right in the 1990 case In re Browning. Florida's high court determined that the constitutional right of privacy includes the right to decline any medical treatment, including the use of a feeding tube. The court said:
Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. The issue involves a patient's right of self-determination and does not involve what is thought to be in the patient's best interests.
* * *
We see no reason to qualify that right on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-maintaining, life-sustaining, or otherwise.
* * *
Courts overwhelmingly have held that a person may refuse or remove artificial life-support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube. We agree and find no significant legal distinction between these artificial means of life-support.
(emphasis added) (citations omitted).
So, as explained by the Florida Supreme Court in 1990, the right to decline medical treatment -- including use of a feeding tube -- has been the law of Florida since no later than 1980. Under the Florida Constitution, feeding tubes are medical treatment that may be refused. What the statutes say on this point cannot overcome the rights conferred by the Constitution.
As many know, the federal constitution does not have an express right of privacy, but the federal courts have found many privacy-like interests to be liberty and due process interests protected by the federal constitution. When the U.S. Supreme Court decided Cruzan v. Missouri in 1990, Justice Sandra Day O'Connor authored a concurring opinion discussing Nancy Cruzan's federal right to decline use of a feeding tube. Justice O'Connor explained:
Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
(emphasis added).
I hope this helps clear up what the law is in this area.
...posted by Matt Conigliaro http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111158613257156180
Your whole premise falls apart instantly when these facts are taken in consideration:
Judge Greer ordered that when the tube was taken out, she wasn't to be given any opportunity to take sustenance through her mouth.
Just what 'law' did he base that order on, sir??
Such a lawless requirement made it a certain death warrant, by cruel and unusual means, totally apart from whether you consider a feeding tube to be extraordinary in any way.
But food and water is not the same as a ventilator or a heart and lung machine, and you know it.
Still channeling Matt Conigliaro I see.
Can you give me one documented example of an actual person asking that their feeding tube be removed so they can die of thirst? And don't give me an example of such provisions in a 'living will'. People are ignorantly signing such documents when they don't have a clue what it means to actually find yourself in that circumstance somewhere off in the future. I want a documented case of a living person, concurrently with their condition that necessitates a feeding tube, asking to be starved and dehydrated to death.
By the way, even if such a person exists...and I doubt seriously there could be very many...suicide is still wrong and should not be abetted by our society and our institutions.
No KDD, you may not contract your minor daughetr to be a sex slave. Nor may she contract to kill you for so doing.
Your sloppy legal beagle Matt knows not contract, nor what may so validly be. Yet by his logic you should be able to so contract your daughter, and she in turn to slay you by agency.