Family conflict and family privacy: the constitutional violation in Terri Schiavo's death.

• Author: Burt, Robert A.

The public understanding of Terri Schiavo's death was refracted through the polarized politics of the abortion wars. By the time the Florida legislature intervened in her case in 2004 and the United States Congress followed suit in 2005, the debate surrounding her had become hardened into the familiar antagonisms of our times--religion vs. secularism, pro-life vs. prochoice, liberals vs. conservatives. On the left, the claim was that Terri had chosen to end her life rather than endure the endless limbo of her persistent vegetative state but that outsiders were attempting to force their own conception of a "life worth living" on her; on the right, the claim was that Terri's medical condition was uncertain, that she might benefit from some further therapy, and that her "right to life" was being scorned by those pressing for removal of her feeding tube. (1)

This stylized conflict obscured a more immediate issue at stake in Terri's case. This issue was presented by the family conflict between Terri's husband, Michael Schiavo, and her parents, Robert and Mary Schindler, about the continuance of Terri's life-prolonging medical treatment. The issue was not the substantive disagreement between them but the simple fact of their conflict regardless of its merits. By the time of Terri's death, this conflict had escalated beyond any sensible proportions and beyond even the most remote possibility of reconciliation between them. Thus after Terri's death, following the removal of her feeding tube as Michael had sought, her parents were not in formed of the time or location of her burial. (2) Soon thereafter, in response to the Schindlers' repeated allegations, a criminal investigation was initiated by Governor Jeb Bush of Florida to determine whether Michael was responsible for injuring Terri fifteen years earlier when she suffered her anoxic event. (3) This increasingly bitter family conflict was the impetus for the proliferating public engagement as competing advocates for Terri's husband and parents sought allies to join their struggle. The family conflict was generally understood, however, as merely the backdrop for the real issue at stake--that is, whether Terri's treatment should be continued. The family conflict was noted by Florida courts as the self-evident justification for their initial intervention to render a definitive judgment about Terri's continued treatment. The need for and propriety of governmental involvement in resolving this dispute was similarly viewed as self-evident in the subsequent involvement of Florida's governor and legislature, and then Congress. The Florida courts rebuffed this involvement on the basis of constitutional assertions of judicial autonomy; (4) the federal courts rapidly disposed of substantive claims for which Congress had authorized de novo review. (5) But none of the courts and virtually none of the other official and unofficial disputants about Terri's fate explicitly asked whether this family dispute should properly have been resolved in any public forum. A principle of family privacy--a principle, I would argue, of constitutional dimensions--was thereby dishonored.

1. PROTECTING TERRI SCHIAVO'S RIGHT TO SELF-DETERMINATION

   Neither Terri's husband nor her parents resisted governmental intervention as such. Michael explicitly claimed that governmental assistance was necessary and appropriate to carry out Terri's wishes, notwithstanding that she had never completed an advance directive or appointed any health care proxy to act on her behalf if she became incompetent. The Schindlers asserted both in judicial and subsequent legislative proceedings that Terri's medical condition was treatable and on this substantive basis argued that state officials should not direct abandonment of life-prolonging treatment. Neither Michael nor the Schindlers asserted that they were pursuing interests of their own; they purported to speak only for and on behalf of Terri. And Florida law specified that the only proper focus for inquiry was Terri's prior wishes. (6)

   In 1990, the U.S. Supreme Court had effectively endorsed the proposition that mentally competent individuals have a constitutional right to choose about the continuance of life-prolonging medical treatment, including artificial feeding. (7) The Cruzan case itself dealt with an incompetent person who, like Terri Schiavo, had left no formal advance indication of her wishes; the Court divided on the issue of the quantum of proof that a state might require to justify treatment discontinuance, with the majority accepting Missouri's specification of "clear and convincing evidence." By 2005, virtually every state had legislatively provided that individuals are entitled to specify advance directives and/or to appoint health care proxies to direct their medical treatment if they should become incompetent.

   Most people, however, do not take advantage of this entitlement (8); and for such people, most states provide for automatic appointment of a health care proxy based on a fixed statutory hierarchy (with spouse first, adult children second, parents third and so on). Under most of these state laws, the statutory proxy appointment effectively resolves any conflict among family members about treatment decisions without any specific inquiry about the incompetent patient's actual prior preferences. (9) (Some state laws provide that where the statutory proxy is a multimember group--e.g., adult children--any disagreement is conclusively resolved by majority vote; and tie votes require appointment of a different, presumably more resolute, proxy. (10)) The justification for this imposed hierarchy offered by the drafters of the widely influential proposed uniform law was that a "presumed majority" would prefer these results. (11) If an individual constitutional right to control one's medical treatment is at stake, this rough calculation about majority preference would arguably be insufficient; and individualized inquiry might instead be required. (12)

   Florida law cannot, however, be faulted on this ground. Though Florida follows other states in providing automatic appointment of a proxy for incompetent patients who had not made their own prior arrangements, Florida explicitly requires this appointed proxy to use a "substituted judgment" standard--that is, to act on the basis of the incompetent patient's prior values and wishes--in making treatment decisions. Unlike most other states, moreover, Florida puts bite into this requirement by specifying that any family member who disagrees with the automatically appointed proxy's decision can secure immediate judicial review; and in these proceedings, the incompetent patient's wishes must be determined by "clear and convincing evidence." (13) Thus more explicitly and rigorously than most states, Florida seeks to vindicate the incompetent patient's prior intentions.

   It is therefore especially striking that the Florida courts truncated their inquiry into Terri's prior wishes by restricting their attention to Terri's views about life-prolonging medical treatment while they failed to ask whether she would have given preferential deference to her husband or to her parents in their conflict over this question. The courts assumed that Terri would simply decide the treatment question for herself without any consideration of deference to one or another family member. One explanation for this unexamined assumption is that the courts were ideologically blinded by the conventional idea of autonomy that has taken hold in our legal culture--the idea that "autonomous choice" implies a self-regarding rational actor who bases his decisions entirely on utilitarian calculation of his own self-interest. (14) The possibility that Terri Schiavo might have wanted to defer to her husband's or to her parent's wishes in preference to her own about treatment prolongation simply vanishes from this cliched but nonetheless culturally powerful conceptualization.

   The judges of Florida court of appeals revealed the distorting grip of this conventional conceptualization in the opinion they rendered in 2003, the fourth of their numerous reviews of Terri's case. Judge Chris Altenbernd, writing for the Court, stated: (15)

   The judges on this panel are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith. But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents, and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about life-prolonging procedures.... It is a necessary function if all people are to be entitled to a personalized decision ... independent of the subjective and conflicting assessments of their friends and relatives.... At the conclusion of our first opinion we stated: In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo ... would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. This is a heart-felt statement. The formal solemnity of...