From Cruzan to Schiavo: similar bedfellows in fact and at law.

• Author: Larson, Edward J.

1. INTRODUCTION

   Whatever else may be said about it, Terri Schiavo's death was legal. It scrupulously complied with Florida state law. (1) Under similar facts, a similar result would occur under the laws of most (if not all) states). (2) Further, those state laws are constitutional. They comply with the letter and spirit of the constitutional regime outlined in the key United States Supreme Court decision dealing with the issue of terminating life-sustaining medical treatment for incapacitated patients, Cruzan v. Director, Missouri Department of Health. (3) Indeed, Terri Schiavo's case cannot be materially distinguished from Nancy Cruzan's case. Reaching a different result in the Schiavo case would require that Cruzan be ignored, overruled, or distinguished to the point that its meaning would be reversed. This article examines how the result in Schiavo inevitably follows from the reasoning in Cruzan. Pro-life reformers intent on preventing future Schiavo-type deaths must change both (1) state laws like that of the Florida Health Care Advance Directive Act (4) and (2) the larger body of common and constitutional law in which they are situated.

2. THE FACTS OF SCHIAVO AND CRUZAN

   Although some partisans dispute various details of the Schiavo case, for purposes of this article I presume that the following material facts are true. In 1990 at age 26, Terri Schiavo suffered brain damage caused by a cardiac arrest possibly brought on by a potassium deficiency in her blood due to bulimia. Every doctor who personally examined her determined that she was in a "persistent vegetative state." A feeding tube was used to provide nutrition and hydration, without which she would die. In the annals of medicine, virtually no one has regained consciousness after being in a persistent vegetative state for as long as Schiavo, and no one has ever done so without suffering severe, permanent physical and mental impairment. (5) In 1998, after seven years of continuing medical care for Schiavo, her husband requested removal of the feeding tube. Her parents objected, and the issue went to court.

   Schiavo had not executed any form of health care advance directive (such as a living will or durable power of attorney for health care). A Florida circuit court found (1) that Schiavo was in a persistent vegetative state and (2) that she would not want to be kept alive in this condition "on a machine." This second finding was based on the testimony of Michael Schiavo and his siblings regarding oral statements that Schiavo had made to them prior to her illness, which the court found to be clear and convincing evidence as to Schiavo's wishes. The court ordered that Schiavo's feeding tube be removed. Schiavo's parents appealed this decision, but it was upheld by nineteen separate judges over an eight-year legal battle. On March 18, 2005, in compliance with the court order, Schiavo's feeding tube was disconnected. She died 13 days later.

   Compare these facts with those of the Cruzan case, as stated in the majority opinion by Chief Justice Rehnquist. (6) On December 11, 1983, at age 25, Nancy Cruzan suffered severe brain damage after she lost control of her car and the vehicle overturned. When paramedics arrived at the accident scene, Cruzan was not breathing and her heart had stopped. An attending neurosurgeon concluded that she had suffered cerebral contusions compounded by significant lack of oxygen. Permanent brain damage results from a lack of oxygen after just six minutes; it was estimated that Cruzan lacked oxygen for at least twice that long. In the weeks that followed her accident, Cruzan passed from a coma to a persistent vegetative state from which she never recovered. A feeding tube was used to provide her nutrition and hydration. As an adult resident of Missouri, Cruzan was cared for in a state hospital at government expense. Five years later, after it became apparent that Cruzan had virtually no chance of regaining her mental facilities, her parents (as next of kin) asked that the feeding tube be disconnected and that Cruzan be allowed to die from a lack of food and water. Hospital employees refused to honor this request without a court order, and the parents took the issue to court.

   The Cruzan case then began its long odyssey in court. Reasoning that a person in Cruzan's condition would have a constitutional right to terminate tube feeding that she should not lose simply because she could no longer exercise it, a state trial court authorized Cruzan's parents to exercise it on her behalf based on evidence of Cruzan's wishes. The evidence offered at trial consisted of Cruzan's "'expressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally.'" (7) The state appealed, and the Missouri Supreme Court found that Cruzan's comments to her friend were "'unreliable for the purpose of judgment on [Cruzan's] behalf.'" (8) Absent a valid living will, the Court insisted on "'clear and convincing, inherently reliable evidence'" of Cruzan's intent before discontinuing life-sustaining treatment. (9) By a 5 to 4 margin, the U.S. Supreme Court affirmed, as against a challenge that Missouri's determination violated Nancy Cruzan of liberty without due process of law. (10) Returning to the state trial court, Cruzan's parents submitted testimony from three new witnesses regarding Cruzan's wishes expressed when she was competent, which the court found to establish clearly and convincingly that she would want her treatment terminated. The Missouri Supreme Court affirmed, and the U.S. Supreme Court refused to review the decision. On December 15, 1990, in compliance with the court order, Cruzan's feeding tube was disconnected. She died eleven days later.

   Under the law, similar facts should lead to similar results--and here the facts are remarkably similar. Terri Schiavo and Nancy Cruzan both grew up in suburban, white, middle-class, Roman Catholic homes--Schiavo in Pennsylvania and Cruzan in Missouri. While still in their twenties, both women suffered severe trauma and slipped into persistent vegetative states from which they were unlikely to recover. Due to the lack of oxygen to their brains during their initial medical emergencies, both women probably incurred permanent brain damage. In both cases, their lives were sustained for years by tubes supplying nutrition and hydration directly into their stomachs and, given their age and medical conditions, both women could have lived for decades more with little or no other treatment than what they received through their feeding tubes. Without the tubes, however, they would die in a matter of days from lack of food and water.

   Assuming the facts outlined above, which were those found by the relevant courts, there were two potentially significant differences between the Schiavo and Cruzan cases. First, Cruzan's family uniformly supported the decision to end tube feeding while...