The (surprising) truth about Schiavo: a defeat for the cause of autonomy.

• Author: Snead, O. Carter

1. INTRODUCTION

   A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. According to the prevailing account, the case involved a husband (Michael Schiavo) fighting for his right as a spouse to vindicate his profoundly disabled wife's wish to decline artificial nutrition and hydration. To do so, Mr. Schiavo had to overcome the efforts of his wife's parents (the Schindlers), and their religious conservative supporters (including politicians both in Florida and Washington), who fought to keep Ms. Schiavo alive at all costs. This battle of autonomy versus the sanctity of all human life (howsoever diminished) raged throughout literally every branch of government, as well as in the national and international media. In the end, though, it was the judicial branch that settled the matter, finding that Michael Schiavo had the right to implement his wife's wishes, free from any governmental intervention or obstruction. It was a decisive victory for autonomy and privacy, and demonstrated that an individual's desire to be free from unwanted life-sustaining measures can be honored, even after she is silenced by severe cognitive impairment.

   The foregoing narrative is compelling, easy to understand, and fits perfectly within the overarching paradigm typically used to interpret the cultural, legal, and political conflicts of present day America. The only problem with this widely shared understanding of the Schiavo case is that it is wrong in almost every key respect. The above account misstates the formal question in dispute, the principal focus of the Florida courts' inquiry, the substance of the courts' various holdings, the basis for the courts' decisions, and the character of the participants in the larger public debate. In this essay, I will seek to correct these errors and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo matter. Far from being a victory for the cause of freedom, it is instead a cautionary tale of what can happen when the legal preconditions for exercising autonomy are absent or ignored.

2. WHAT ACTUALLY HAPPENED

   It is useful to begin by noting briefly some of the more obvious factual flaws in the prevailing narrative. Contrary to the popular account, the Schiavo matter was not a dispute about which principle--respect for autonomy or the sanctity of all human life--should govern decision-making regarding the administration of life-sustaining measures. Nor was it a case about who--as between spouses and parents--is best situated to make such decisions for incapacitated loved ones. It also was not a case about who--as between the government and the private individual-should have the final say in this intimate and private domain.

   To the contrary, both the Schindlers and Mr. Schiavo agreed from the outset that the relevant good to be defended was Ms. Schiavo's right to autonomy and self-determination. Despite the acrimony and discord between Mr. Schiavo and the Schindlers, they were in complete agreement that the proper task at hand was to discern and implement (if possible) Ms. Schiavo's wishes regarding artificial nutrition and hydration. Thus, the Schiavo case did not involve a philosophical quarrel about what is owed to the profoundly disabled--all parties to the conflict agreed that self-determination was the paramount value. Rather, the case was essentially a factual dispute about the content of Ms. Schiavo's intentions. Mr. Schiavo argued that she would not want to continue living under the circumstances, and the Schindlers asserted the contrary (1) (or alternatively, that her wishes had not been sufficiently established to support termination of artificial nutrition and hydration). (2) Accordingly, the outcome of the case cannot properly be interpreted as a victory for the principle of autonomy over the sanctity of life, as some have suggested. (3) This deeper (and more interesting) dilemma was never the focus of the litigants' or the court's inquiry.

   The courts in this case likewise were not called upon to determine which party--Mr. Schiavo or the Schindlers--was best suited to act on behalf of Ms. Schiavo. Rather, the court took it upon itself to determine the proper course of treatment for Ms. Schiavo, based on its own assessment of the facts and law. (4) The Florida court's holding did not, therefore, authorize Mr. Schiavo to make the final decision for Ms. Schiavo because he was her husband. The court implemented its own determination regarding this question. And it did so in a compulsory way--the caretakers of Ms. Schiavo were required, on pain of contempt of court, to follow the court's order to withdraw artificial nutrition and hydration. (5) Thus, the Schiavo matter cannot properly be understood as a victory for spouses over parents in end-of-life decision-making, as some commentators have suggested. (6) Similarly, it should not be celebrated as a case in which the individual was empowered to make her decision free from any governmental intervention. It was, in fact, the government (namely, the Florida judicial branch) that decided by its own lights what was owed to Ms. Schiavo.

   Though ancillary to the focus of this essay, a brief word about the larger political debate is in order. The conventional wisdom seems to be that this case was merely another skirmish in the now all too familiar conflict between religious conservatives and secular liberals (and their occasional libertarian allies). (7) But this view fails to capture the complexity and peculiarity of the political dimension of the Schiavo matter. The political debate did not feature the usual alignment of politicians and activists who regularly weigh in on contested social issues. Liberal champions such as Senator Tom Harkin, Reverend Jesse Jackson, and Ralph Nader rose to the defense of the Schindler family. Nearly half of the voting members of the Congressional Black Caucus supported federal legislation to authorize the Middle District of Florida to hear, de novo, any federal claims asserted on behalf of Ms. Schiavo by the Schindlers. (8) Indeed, not a single U.S. Senator voted against this extraordinary avenue of relief. To be sure, many liberals and conservatives intervened in a manner that one might expect--the former for Mr. Schiavo and the latter for the Schindlers. But these partisans made arguments that seemed to be in deep tension with their overarching philosophies and ideological commitments. Conservatives supporting the Schindlers abandoned both their longstanding deference to the states and their usual opposition to additional layers of federal procedural safeguards for civil rights (manifest in their public arguments regarding the availability of habeas corpus relief, particularly in the death penalty context). Conversely, liberals supporting Mr. Schiavo acted uncharacteristically by arguing for strict deference to the findings of the Florida courts, and against additional federal process aimed at preserving the individual rights and liberties of the weakest and most vulnerable among us. In a departure from the norm, conservatives made impassioned pleas for substantive justice, and liberals persistently argued for reliance on formal process. These inversions and apparent contradictions in the political discourse were oddly reminiscent of another high-profile case arising from Florida, just five years earlier.

3. SCHIAVO'S IMPLICATIONS FOR AUTONOMY

   Granting that the conventional understanding of the Schiavo matter is technically mistaken and should be modified as described above, why should it finally be regarded as a blow to the cause of autonomy and self-determination in this particular domain? To answer this question, it is necessary first to set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, it will be necessary to provide a brief sketch of how the law--both as enacted and interpreted--might ideally serve to promote and defend the goods of autonomy and self-determination. I will then use this standard to assess the process and outcome of the Schiavo case. I submit that judged according to this measure, it is clear that both the process and result in the Schiavo case undermine the ideal of autonomous decision-making at the end of life, and should thus be condemned by those who champion these values in the public square.

   Before proceeding with this analysis, it bears noting that I do not in this essay seek to resolve the rich and complex debate over which moral and ethical principles should be paramount when deciding how to act for a profoundly disabled loved one who requires artificial nutrition and hydration, but cannot speak for herself. By focusing exclusively on the principle of autonomy and self-determination, I do not intend to imply that it should have pride of place in such decisions, at the expense of other goods and values. Indeed, I do not even mean to suggest that the proper method for resolving ethical questions such as those presented by the Schiavo case is through applying or balancing abstract principles as such. My narrow purpose in this essay is simply to demonstrate that the legal process utilized in the Schiavo matter utterly failed to advance the cause of autonomy in the end-of-life context.

   A. THE VISION OF AUTONOMY AT THE END OF LIFE

   The principle of respect for autonomy and self-determination predominates in modern bioethics: "Because of the intimate and intrusive nature of biomedical decisions, a central focus of bioethics has been to respect and protect an individual's autonomy in making those decisions." (9) Advocates for a robust notion of autonomy ground their claims in the "moral fact that a person belongs to himself and not...