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Jewish World Review Nov. 5, 2003 / 10 Mar-Cheshvan, 5764

Nat Hentoff

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Consumer Reports

Should Terri Schiavo stay alive? A legal answer


http://www.NewsandOpinion.com | On Oct. 15, Michel Schiavo, husband and guardian of 39-year-old Terri Schiavo, ordered the removal of her feeding tube. For 13 years, this brain-damaged woman has been in what some, though not all, neurologists say is a "persistent vegetative state." She is not brain dead, not terminal and, as The Economist magazine reports, "Her expression appears to go from stupor to joy at the sound of her mother's voice."

The Florida legislature has intervened in the case, giving Gov. Jeb Bush the power to overrule her husband and reinsert the feeding tube. Michael Schiavo has gone to court to have the feeding tube removed again. She would then starve to death. Initially, the resultant furor across the nation at this form of "death with dignity" — in the phrase of right-to-die proponents — pressured the legislature to act.

Gov. Bush was already in favor of Terri's right to stay alive, emphasizing that "it is only the lack of food and water that will cause her death," and she "is not comatose."

However, an array of lawyers, doctors, bioethicists and — to my dismay — the American Civil Liberties Union support her husband's right to end her life.

Harvard University's eminent professor of constitutional law, Laurence Tribe, told The New York Times that he disagrees with the interference of Florida's legislature and governor. By not supporting Michael Schiavo's testimony stating that he knows what Terri would have wanted, they "fundamentally violate her right to bodily integrity," as well as the separation of powers in our government that gives the judiciary the final say over the legislature. Other lawyers disagreed.

I do not have a law degree, but I would have thought that the ultimate violation of anyone's bodily integrity is to starve a person to death.

The witnesses to Terri's alleged statement, when she could speak, that she did not want to stay alive "by artificial means" are her husband, his brother and his brother's wife. But Terri's parents, Bob and Mary Schindler, who have fought all of these years for her life, vigorously deny ever hearing their daughter say anything of the sort. Whatever Terri may or may not have said, did she include starving to death as a form of "artificial means"?

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Michael Schiavo is so determined to remove his wife's feeding tube that, after the order was given to reinsert it, one of his lawyers faxed a letter to doctors in Pinellas County, where the procedure was to be done, threatening to sue any doctor who reconnected the feeding tube because Terri's husband was going to court to contest what the legislature and the governor had done.

According to Terri's parents; their lawyer, Patricia Anderson; and several reporters there is another dimension to Michael Schiavo's concentration on ending his wife's life. In the Oct. 20 the Weekly Standard Online, Wesley Smith — who has done more extensive research on these right-to-die cases than anyone I know — reported:

"Michael ... is engaged to be married and has a baby with his fiancee (with whom he is living), with another one on the way." Both Smith and Terri's parents also charge that, after the jury awarded $1.1 million in damages in a medical malpractice suit connected with Terri's condition, "approximately $750,000 was set aside to pay for her care and rehabilitation. But ... Michael refused to provide Terri with any rehab." Michael Schiavo vigorously denies this. My information is he provided some rehab care until it was too expensive.

In reporting this fierce contest for Terri's life, the media has contended that most of the support for reinserting the feeding tube has come from "the religious right" and pro-lifers (the two are not always synonymous). Overlooked is the deep interest in Terri's case from disability rights organizations. Fourteen of those national groups have filed a friend-of-the court brief to keep Terri alive.

In an Oct. 24 letter to The New York Times, Chicago's Access Living's Max Lapertosa objected to the paper's editorial that "true respect for life includes recognizing ... when it ceases to be meaningful." The Times supports the husband, writing that "the courts should reaffirm Mrs. Schiavo's right to die in peace." Starvation is not at all peaceful since she is responsive.

Lapertosa reminded The New York Times, and the rest of us, that "many would lump in this category (of meaningless life) people with severe autism, multiple sclerosis or cerebral palsy who, like Mrs. Schiavo, are nonverbal."

Terri is indeed disabled, but she is not a vegetable. Says Jacksonville, Fla., board-certified neurologist Dr. Jacob Green: "There was no doubt this woman had minimal but definite cognizant function. She is not in a vegetative state." To remove her feeding tube, Green adds, "I'll call it murder. They're ... taking away any chance."

I will address the constitutional separation of powers issue in a future column, but had I been in the Florida legislature, I would not have voted to starve her to death.


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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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