Soccer Dad

Second, third and fourth thoughts

If there is a central issue in the Terry Schiavo case it is this comment quoted by Kesher Talk:

It all hinges on whether the feeding tube is simply nutrition and water, or whether it should be regarded as medicine

Many of us who opposed the removal of Terry Schiavo's feeding tube see nutrition as being the equivalent of air to breathe. Cut off her nutrition and it's the same as cutting off her air. You might as well put a pillow over her face. For those who champioined the removal of her feeding tube it's a medical decision; no different from a respirator for someone whose lungs are failing.
Alas the law is on the side of those who favor the stopping of nutrition.
The following exchange is from a Q & A with law professor Lawrence Frolik at the Washington Post's website:

Great Falls, Va.: Isn't it unfair to call this situation a case of "medical care.'? Food and water are among the most basic needs of a human being. And as any RN can tell you, it takes very little to learn how to use a feeding tube and such a person requires no special diet. If food and water are as basic a necessity to life as the air we breath, why not suffocate Ms. Schiavo and get it over with more quickly? Death by starvation is one of the most cruel ways to go.

Lawrence Frolik: The American Medical Association has ruled that the artificial provision of nutrition and hydration are a form of medical treatment. And since she does not feel pain, it does not seem cruel. As for suffocating her, that would be criminal homicide.

And as Abstract Appeal makes clear the AMA's ruling has been accepted by Florida state:

Terri is given food and water through tubes. Is disconnecting a feeding tube the same as ending life support?

Yes, under Florida law, which governs the ability of each person to determine, or to appoint someone to determine, whether each of us should receive what the Legislature terms "life-prolonging medical procedures." The Legislature has explained:

The Legislature recognizes that for some the administration of life-prolonging medical procedures may result in only a precarious and burdensome existence. In order to ensure that the rights and intentions of a person may be respected even after he or she is no longer able to participate actively in decisions concerning himself or herself, and to encourage communication among such patient, his or her family, and his or her physician, the Legislature declares that the laws of this state recognize the right of a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures, or to designate another to make the treatment decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her medical care.
§ 765.102(3), Florida Statutes.

The Legislature has also defined what is a "life-prolonging procedure":

"Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.
§ 765.101(10), Florida Statutes (italics added by me).

When this is taken into account, it's hard to see how the Schindler's could possibly win. The law as it stands now is firmly on the side of Michael Schiavo. There really is little the judicial system could do in terms of ignoring that. Although I am very uncomfortable with this, there seems to be no ambiguity in the law.
So why am I uncomfortable?
Two things. One is that while I can understand that Terry Schiavo is brain damaged I don't accept that it means that she's at death's door. Removing the feeding tube brings about her death; it doesn't speed up a process already underway.
Because of this first belief, I think that the standard of proof that it was her wish not to be maintained in this state should have required more than the slender reed of a remembered conversation by an interested party as evidence.
The belief that Terry Schiavo is alive despite a lower level of functioning and no hope of recovery is something that is based in Halacha. I suspected that this was the case but as this article makes clear, it is the case. (Thanks again to Kesher Talk.):

It is important to note that Jewish law clearly distinguishes between terminal illness and progressively debilitating illness (a distinction that is often ignored in secular ethics discussions).

An incurable illness which will likely result in the death of the patient within one year is considered terminal with respect to Jewish law. A patient with such an illness or condition is called a "chayay sha'ah,"16 -- one whose life is "timed" or "time-limited." One who is expected to survive beyond a year is considered a "chayay olam" -- one whose life is considered "eternal" in the sense that their life expectancy is presumed indefinite and not limited.

Thus, in halacha, persistent vegetative state and Alzheimer's disease are not terminal conditions, per se, despite the fact that they are progressive, irreversible and inevitably result in death. Halacha insists that patients with these illnesses deserve the same full range of treatment that is made available to any other patient. They are not "terminal" (until the very end stages of their illnesses) and must be aggressively treated without regard to the apparent "futility" of their lives.

(Read the whole article. Jewish law does allow a measure of personal autonomy whether to accept or refuse treatment. But not in this case. Halachically a living will asking to be denied extraordinary measures would have no force.)
Nor is this strictly a matter of Halacha. James Q Wilson writes:

My case, and that of countless other people who have made that decision, differs from that of Terri Schiavo in two important ways. First, the early death of my mother was certain, but no one could say that Ms. Schiavo would die soon or possibly at any time before she might die of old age. Second, all the relevant family members agreed on the decision about my mother, but family members are deeply divided about Terri.

These differences are of decisive importance. When death will occur soon and inevitably, the patient does not starve to death when life support ends. Since there was no chance of our mother living more than a few more days, what my sister and I did could not be called murder. When death will not occur soon, or perhaps for many years, and when there is a chance, even a very small one, that recovery is possible, people who authorize the withdrawal of life support are playing God.

It's true that I am a bit concerned by Congress and the President getting involved. The potential for future mischief is troubling. On the other hand, they saw, as I did, a life at stake so they went against their principles and took action. And they did it despite the political risks.
Hube's Cube noted:

Looks like I've "let down" some fellow right-of-center bloggers with my views on the Schiavo case. Nevertheless, I'll let my post on the affair continue to stand for itself.

That being said, there seems to an inherent contradiction espoused by some on the left that Pres. Bush and Republicans in Congress that they're engaging in "political opportunism" and "trafficking in human misery" by getting involved in the Schiavo matter. But, if, as columnist Robert Scheer notes, "70% of Americans polled nationally called congressional intervention in the Schiavo case inappropriate, with 58% holding that view "strongly," how then can the president and Congress be "opportunistic?"

Hube's Cube's commenters still saw the possibility of opportunism. But I suspect in this day and age politicians would poll about anything and everything. Either the Republicans knew the risks or they didn't care. (I realize that, to some, that makes what the Republicans did even more outrageous.)

Although I am conflicted about what is going on. I'm not as critical of the Republican politicians as Charles Krauthammer ( a member of the President's council on bio-ethics) is. If there's one group whose views truly disturb me it is that of the medical ethicists.
An excellent article in the Washington Post tells us:

Because the brain performs so many functions, Veatch and others said, the ongoing challenge facing scientists and ethicists is to determine which of those functions add up to a life.

What's wrong with this?
It appears that medical ethicists are more informed by determining personal autonomy and what defines humanity than they are by preserving life.
David Brooks also touches on this in his recent column "Morality and Reality":

If you surveyed the avalanche of TV and print commentary that descended upon us this week, you found social conservatives would start the discussion with a moral argument about the sanctity of life, and then social liberals would immediately start talking about jurisdictions, legalisms, politics and procedures. They were more comfortable talking about at what level the decision should be taken than what the decision should be.

Then, if social conservatives tried to push their moral claims, you'd find liberals accusing them of turning this country into a theocracy - which is an effort to cast all moral arguments beyond the realm of polite conversation.

Once moral argument is abandoned, there are no ethical checks, no universal standards, and everything is left to the convenience and sentiments of the individual survivors.

What I'm describing here is the clash of two serious but flawed arguments. The socially conservative argument has tremendous moral force, but doesn't accord with the reality we see when we walk through a hospice. The socially liberal argument is pragmatic, but lacks moral force.

This problem of medial ethics is illustrated by the comments of Lawrence Frolik cited above:

The American Medical Association has ruled that the artificial provision of nutrition and hydration are a form of medical treatment. And since she does not feel pain, it does not seem cruel. As for suffocating her, that would be criminal homicide.

He's saying that because the provision of nutrition is a medical treatment it may be refused. And (elsewhere) he says that because courts determined that Terry Schiavo wouldn't have wanted to live in this diminished capacity we must respect her wishes. And when he's asked about suffocating he calls that murder. But there's only a legal definition between starving Terry Schiavo and suffocating her. And he seems comfortable with starving Terry Schiavo because he's certain that she couldn't feel anything. The line here seems arbitrary.
I believe that this failure to place a premium on preserving life has its costs. A comment at Cross Currents tells us:

There already was such an article in the Jewish Observer a few months ago. It described several cases in which Orthodox patients had DNR orders entered on their charts without their consent or authorization and against the unanimous wishes of their families. In some cases, Agudath Israel went to court against the hospital to have the DNR order removed. Several families were pressured to remove various forms of life-sustaining treatment, on the argument that the patient was a “vegetable.” Some of these so-called vegetables walked out of the hospital on their own, in one case only four days after being designated a “vegetable.”

(UPDATE: James Q Wilson noted in his article that studies have shown that having a living doesn't have any effect on how a patient is treated.)
I wonder if the medical ethicists have anything to say about that?
Finally, as I've thought more about the Schiavo case, I've changed my opinion of Michael Schiavo. I can't excuse him for taking up with another woman. But I don't believe that he initiated the process of removing his wife's nutrition for the money. There's been plenty of testimony of the effort he gave to his wife's care. I believe that what changed Michael Schiavo was being convinced that his wife's brain damage was irreversible. This may have occurred at the same time as the award, but if I've read my timeline correctly there was also a new diagnosis at that time. The bitterness of the fight between Michael Schiavo and the Schindlers is about hope and the death of hope. Not money.
But the main problem here is not Michael Schiavo. It's not the courts. It is the law that allows a woman who is not dying to be killed by starvation.

Posted by SoccerDad at March 29, 2005 06:45 AM | TrackBack