Killing Terri Schiavo.

• Jurisdiction: United States
• Date: 22 December 2005
• Author: Paulsen, Michael Stokes
• Published date: 22 December 2005
• Author: Paulsen, Michael Stokes

Much ink and wind was expended during the tragic last few weeks of Terri Schiavo's life, debating the facts and issues surrounding her death. But it reduces to this: The State of Florida, acting through its judiciary, ordered a severely disabled woman to be slowly dehydrated and starved to death, by removing her feeding tube.

This sort of thing, of course, happens all the time. (1) The exceptional feature of the Terri Schiavo case is not the situation it presented or the result produced, but the extraordinary attention it received, out of all proportion to anything genuinely unique about its facts. Many commentators have pointed this out, curiously implying that this fact somehow justified the state's actions or rendered illegitimate the extraordinary efforts to save her life. It does not. To be sure, there is something odd in the treatment of Terri Schiavo's case as if it were one-of-a-kind. There is a certain Saving Private Ryan element to Killing Terri Schiavo: When so many others are being killed, why should anyone care about, let alone take heroic efforts to save, this one person? But just as the Steven Spielberg's famous movie frames a compelling story, the real-world story of Terri Schiavo is paradigmatic as well as dramatic. Whether the legal system produced a defensible result in this case tells us a lot about how the legal system should act in the many, many other cases that are not so very different. Unique, unusual attention on this case affords an opportunity for focused examination of issues of general importance.

The conventional legal fiction usually asserted to justify the killing of Terri Schiavo--a legal fiction that, while of recent vintage, rapidly has become familiar and deeply embedded in the law--was that this is what she would have wanted, and therefore the state was justified in ordering it. By all accounts, Terri Schiavo had extremely little or no cognitive capacity. She was not in a coma, but she likely was in a "persistent vegetative state." Terri Schiavo had left no living will or advance medical directive as to what her desires were with respect to her medical care (and food and water) under such circumstances. Florida law provided that her husband could apply to a court for an order that she be starved and dehydrated to death if he could satisfy a court by "clear and convincing evidence" that this is what she wanted. A state trial judge so found, and the appellate courts deferred to the trial judge's determination.

There is no doubt that Terri Schiavo could have continued to live indefinitely in her deeply disabled condition. Her condition was tragic but not terminal. Removal of food and water, even if characterized as a decision regarding her "medical care," affirmatively killed her. At best, then, the killing of Terri Schiavo was a state-assisted suicide. At worst, it was a state-ordered execution of a disabled person who had committed no crime and was unable to speak in her own defense. Which of the two it was--bad, or much worse--depends on the reliability of the determination of Terri Schiavo's "consent" to the slow taking of her life by order of a state judicial officer.

My modest contention here is that the Constitution's requirement that no person be deprived of his or her life without due process of law requires, at minimum, that the state not kill an individual who is not competent to express his or her wish for death and has given no advance directive, except on an evidentiary showing that this was the victim's desire satisfying a standard of proof at least as high as that required to execute a murderer-proof beyond a reasonable doubt of the proposition(s) thought to justify the state's life-depriving act. Moreover, as with the imposition of the death penalty, the greatest of procedural care and caution must be taken in guarding against a wrongful decision, because of the terrible human finality of the state's action.

I submit that, except on the basis of proof beyond a reasonable doubt that the victim possessed and expressed a desire to be killed under the circumstances, state action to deprive the victim of her life fails to satisfy the Due Process Clause of the Constitution. The beyond-a-reasonable-doubt standard is the one long held to be required by the Constitution for ordinary criminal convictions. (2) It is difficult to see why any lesser standard should guard innocent disabled persons against wrongful or arbitrary execution on the mistaken, capricious, or malicious assertion of third persons that this is what the victim would want if she could speak for herself. (I have very serious doubts about the moral propriety of the state's granting of, and ordering the carrying out of, an individual's wish that she be killed, even where the victim's desire is expressed with unmistakable clarity, but that is a separate question that I leave to one side for present purposes.)

Another way of thinking about the same issue is that the state denies a disabled or incompetent person the equal protection of the laws when it grants to any third person a license to kill the disabled or incompetent person, or assumes such a power itself, on any lower showing of the victim's desire to be killed than proof beyond a reasonable doubt. The very core of the Equal Protection Clause is that the state may not withdraw from its protection against the private violence of others (and certainly that should equally include the public violence of state actors) certain classes of individuals--most certainly including persons who are disabled and whose disability prevents them from protecting themselves, or speaking for themselves. Assuming (for the sake of argument) that the Equal Protection Clause does not absolutely forbid the state from ordering the killing of a person, not found guilty of any crime, on the application of another person asserting the victim's consent, surely the standard for granting such a request on the basis of the legal fiction of the victim's consent, should be an extraordinarily high standard of proof that might warrant the finding of such constructive consent--proof beyond a reasonable doubt, or perhaps something higher yet. (3)

This was not the standard employed in the state judicial decision ordering the killing of Terri Schiavo. Rather, the Florida courts employed a lower, "clear and convincing evidence" standard--and employed it quite badly. (4) Much of the subsequent federal Due Process Clause legal challenge to the validity of the state's action in ordering Terri Schiavo's food and water removed focused on whether the trial judge could properly have found that the evidence presented satisfied the "clear-and-convincing" standard, or whether the trial judge was an improperly biased or otherwise poor decision-maker. Such contentions were scarcely frivolous, under the circumstances (and, as I argue below, the federal courts were surely wrong to deny interim injunctive relief to save Terri Schiavo, in order to consider those claims fully and carefully). But the fact that too low a legal standard of proof was employed in the first place is an even clearer (and more convincing) basis for concluding that the Florida courts' order deprived Terri Schiavo of her life without due process of law, and seemingly did so because of its legal treatment of her disability, denying her the equal protection of the laws because of...