(from CourtTV.com) Court TV Host: The Supreme Court on Thursday refused to order Terri Schiavo’s feeding tube reinserted. What, if anything, is next in the legal and political battles over the Schiavo’s future? Discuss the latest developments and the wide-ranging issues with two lawyers with very different views:
Court TV Host: Bill Allen, director of the Program in Bioethics, Law and Medical Professionalism at the University of Florida College of Medicine, who supports the Florida courts’ handling of the case; and Wesley Smith, senior fellow at the Discovery Institute, attorney for the International Task Force on Euthanasia and Assisted Suicide and special consultant for the Center for Bioethics and Culture, who thinks Terri Schiavo should be kept alive. His current book is Consumer’s Guide to a Brave New World.
Court TV Host: Gentlemen, welcome, thanks for being our guests online today.
Wesley Smith: Thank you.
Bill Allen: Thank you.
Question from kiara: Gentlemen, this issue is so contentious…..how did it rise to this level, to the U.S. Supreme Court?
Bill Allen: Well, part of how this got there so fast is the technology available. The Internet and cable TV.
Wesley Smith: The same thing that is permitting us to have this discussion: The Internet. I think that when the Schindlers put videos of Terri on line at www.terrisfight.org, it humanized Terri.
Bill Allen: It makes things happen so much faster, and cable TV has to fill up a lot of time with drama.
Wesley Smith: Many came to see her not as a lump of flesh, but a full human being. This story was driven from the grass roots as a consequence, not from the top, down.
Bill Allen: And those video snippets on the Internet and constantly on cable make it difficult for people who don’t understand persistent vegetative state to understand what her condition is.
Question from rotozaza: Hello Bill and Wesley. Why are there so many contradictory reports out about Terri’s medical condition? Can’t anyone agree on her brain function?
Wesley Smith: Medicine is not an exact science. That is why sometimes we speak of the “art of medicine.” So, different experts might interpret data differently.
Bill Allen: Well, three leading neurologists did agree she is in a persistent vegetative state and the one neurologist who did not is listed on quack watch for some things in his past.
Wesley Smith: One of my big beefs about this whole case is that when some experts testified she might be able to be improved and others said, no she can’t — it wasn’t like a he said/she said credibility contest.
Bill Allen: The current neurologist who has been obtained by Fla. DCF is probably a better expert, but PVS is not his specialty.
Wesley Smith: It seems to me that the reasonable approach would have been for Judge Greer to say, “Well, let’s find out for sure. Let’s give Terri 6 months or a year’s worth of rehabilitation and then report back. Once that is done, at least that matter would be settled.”
Bill Allen: At least he takes a very tentative position in his affidavit. He concludes that he would not feel comfortable pulling her feeding tube, but he does not say she is in a minimally conscious state. He says she might be.
Wesley Smith: Because it appears to many that the benefit of every doubt has been toward Terri dying, and indeed, not giving her any chance to improve — even if remote — millions see this case as a profound injustice.
Question from phroggygreen: Feeding tubes are removed every day. How did this get so out of hand?
Wesley Smith: There was a debate in bioethics throughout the 80s as to whether tube feeding should be considered medical treatment.
Bill Allen: Feeding tubes are removed every day, but many people are more comfortable with the idea of removing them for cancer patients at the very end of their lives.
Wesley Smith: The outcome, in Cuzan v. Missouri, was a ruling from the Supreme Court, that it was medical treatment. As a consequence, people in all fifty states, some with higher functions than Terri, are dehydrated every day in this country. If no one objects, nothing is said about it.
Bill Allen: Many are not as comfortable removing them from a person in a persistent vegetative state, but it is clearly within Florida law and the U.S. constitutional law announced in the Cruzan case
Wesley Smith: It is family disputes like this one that brings these issues out into the public sphere
Bill Allen: But Jehovah’s Witnesses can refuse blood products and Christian Scientists can refuse all medical treatment, so refusing a feeding tube is neither unethical nor illegal if the patient has said that is what they want.
Wesley Smith: With regard to the cancer patient issue: It seems to me that there is a profound difference between not force feeding the actively dying when they stop eating and drinking, and removing food and water from a person who is not dying because of quality of life considerations.
Question from nadia: Don’t you believe that the government should not be allowed to intervene in the private lives of citizens, no matter how tragic this situation is?
Wesley Smith: No. The government’s job is to protect the lives of its citizens. That is why, for example, we have government-funded suicide prevention centers.
Bill Allen: In Florida voters passed a constitutional amendment in 1980 saying that government cannot interfere in citizens’ private lives.
Wesley Smith: We intervene to prevent the use of drugs. We intervene to stop people from abusing themselves. Of course, the government should not intrude lightly. But to protect life, that is one of the most important purposes of government.
Bill Allen: In the Browning case in 1990, the Florida Supreme Court used that amendment to say that feeding tubes can be withdrawn from persons in a PVS if they wanted treatment refused. Mrs. Browning was in a PVS and the court allowed her friend to testify that she would not have wanted to live that way. So this has been clear in Florida law for 15 years.
Wesley Smith: The Florida Supreme Court, however ruled that the constitutional right did not include the right to assisted suicide.
Bill Allen: I think it is important for the government to intervene to protect the vulnerable from abuse by others, but when a person wants to refuse medical treatment for themselves that is not abuse by others.
Wesley Smith: Many people see this as abuse by others. The evidence of Terri’s desires was weak, and the question is, should relatively casual conversations become the bases for decisions of this import. I mean in the mid-80s, most people thought refusing treatment meant machines, not feeding tubes.
Bill Allen: Yes, but since the mid-eighties many ethicists and physicians have realized that tube feeding is an intrusive medical treatment much like ventilator or dialysis and so it is appropriate to refuse feeding tubes as well.
Wesley Smith: But Terri’s statements took place in the mid-80s. Shouldn’t the issue be analyzed from what she would probably have understood when she allegedly made those statements? Moreover, most people don’t see feeding tubes as heroic efforts.
Bill Allen: I don’t know that most people see it that way. Many do, but the polls right now are showing that many people do not regard this as unethical.
Question from jeanne:
Can Gov. Bush override Judge Greer?
Wesley Smith: I think we should always remain within the rule of law. Always. I favor doing whatever it takes to LEGALLY save Terri’s life. But I doubt whether Gov. Bush can unilaterally ignore Judge Greer’s orders.
Bill Allen: Since Marbury v. Madison shortly after the Republic was founded, this question has arisen. In that case Congress tried to run over the U.S. Supreme Court and Justice John Marshall ruled that the Congress could not do that.
Question from Julie2inCA: Why was Dr. Cheshire’s report not considered? It was not known how to diagnose minimal consciousness at the time she was diagnosed PVS. Do you not feel that it should at least have been considered?
Wesley Smith: Much evidence has come in after the first trial. Another one of my problems with this case, is that the first trial record has been hung like a millstone around Terri’s neck. So much has come out, that I really think a new trial is in order so it can all come in and be subject to cross-examination. That this isn’t happening is another reason why many people see Terri’s pending death as a profound injustice.
Bill Allen: The minimally conscious state has been in diagnostic criteria defined in a 2002 article in the journal Neurology. One of the authors of that article is Dr. Cranford, who examined Terri Schiavo for Michael Schiavo. So he is an expert on the minimally conscious state. In fact, Dr. Cheshire’s affidavit cites Dr. Cranford’s article. So you have Dr. Cheshire, who has not examined Terri Schaivo, citing Dr. Cranford’s article on minimal consciousness and Dr, Cranford wrote the article and examined Terri Schiavo, so he would have known whether she was in that state instread of a PVS.
Wesley Smith: Ron Cranford, in my view, is something of a zealot on these issues. He has testified in every notable “food and fluids” case of this kind — always on the side of dehydration.
Bill Allen: Well, he has testified in a lot of cases because he is an acknowledged expert. He wrote the multi-disciplinary task force work on PVS which was published in the new England Journal in 1995.
Question from rusty: Who is currently paying for Terri’s care?
Bill Allen: The Woodside Hospice is using their indigent funds for the hospice costs, and her medications and physician bills are paid by Medicaid.
Wesley Smith: What I find terribly ironic, is that in 1998, Terri had more than $700K in her trust account to pay for her care. The bulk of this money instead went to lawyer George Felos and other attorneys, to help end her life.
Bill Allen: Well, if she did not want to have the care, why should her trust fund pay it, and if she did not, it is appropriate for the fund to pay the legal costs of fighting for her rights.
Wesley Smith: Well, her parents had to take their legal fees out their own pocket, and indeed have spent most of their assets trying to save Terri’s life.
Bill Allen: Well, use of the trust fund by Terri’s husband is using her own funds, too.
Wesley Smith: Yea, but not his funds.
Bill Allen: But if she didn’t want the care, then using her funds is OK.
Question from scottscellmate: Who is paying for the lawyers?
Bill Allen: George Felos, Michael’s attorney has done a lot of the work for free, since the trust fund has been exhausted. And the ACLU is helping George Felos and Michael Schiavo now. Pat Anderson helped the Schindlers immensely for free. She really kept them in this for a long time on her own before they started raising funds for their fight.
Wesley Smith: The Schindlers have exhausted their own funds. They have had some help from pro life groups around the country. Disability rights activists might also have contributed. Pat Anderson, the Schindlers’ lawyer before the Gibbs firm, gave selflessly of herself to the point of real financial sacrifice. I am assuming that Gibbs isn’t receiving any money either. This is about principle for both sides.
Question from Jenny: Should the fact that Michael Schiavo is living with another woman, somehow disqualify him to make these decisions?
Question from TK: Michael needs to turn the custody over to the Schindlers. He has another family, “common-law” wife…let Terri live. Why is it so important to kill her? Is he in for more money is she dies?
Question from LisaJohnson: Terri’s husband has obviously moved on with his life, why not divorce her and let her parents assume responsibility?
Wesley Smith: Yes. Living with another woman and having two children by her constitutes abandonment by any definition. If he wants to move on with his life, via con Dios, I say. But he shouldn’t be allowed to be guardian and push this death decision. Once he has moved on, her parents should be next in line.
Bill Allen: The fact that Michael has moved on with his life is not relevant to this, since the legal and I would say the moral question is: what would Terri Schiavo want.
Wesley Smith: I doubt Terri would want a husband who has a new family to decide over a family that remains utterly committed to her life and welfare.
Bill Allen: The judge found that Terri would not have wanted the care regardless of what Michael wanted, and he found that on the basis of testimony from more than Michael. He also in his ruling found the Schindlers’ testimony to be not credible.
Wesley Smith: The new family constitutes a profound conflict of interest, personally. And when the case began, there was also a conflict of interest financially. Indeed, a guardian ad litem recommended against the dehydration at the beginning of the case because of this financial conflict. What happened? The guardian ad litem was dismissed, and no new one appointed — another reason why this is seen by so many as a profound injustice.
Bill Allen: And the reason he has had to move on is because he is caught in this fight to carry out his promise to Terri Schaivo and the Schindlers have kept him from moving on completely by dragging this out so long.
Question from kiara: Gentlemen, what range of legal precedents do you foresee as a result of this case?
Question from NicNYC: My question is: what are the implications for others in Terri’s condition? Additionally, should the public go a step further in their living wills and videotape them?
Wesley Smith: I don’t see any new precedents arising as a result of this case.
Bill Allen: There is nothing new as far as precedents on end of life care, but the precedents on separation of powers may be important.
Wesley Smith: The implications are profound. Some bioethicists believe in “futile care theory,” which would give doctors the right to refuse WANTED life sustaining treatment. Thus, under this theory, if Michael and the Schindlers agreed that the treatment should continue but the doctors disagreed, the treatment could be stopped. A futile care case just happened in Houston, TX
Bill Allen: I think videotape is a good idea and I have recommended this for years. It does not have greater legal validity, but seeing someone’s face and hearing their voice tell you this is what they want may make it emotionally and psychologically easier to honor their choice when it is hard than just words on paper.
Wesley Smith: I think that with regard to advanced directives, they need to be carefully thought out. Not just fill in the box type forms.
Bill Allen: Futility should only be used when the proposed treatment would not work, for example if you have a hole in the heart wall, CPR will not do any good and doctors should not have to try it since it is futile. This is called physiological futility as opposed to quality of life futility.
Wesley Smith: Physiological futility is one thing. No doctor should be re
quired to provide treatment that will provide no benefit. But some advocates want to stop treatment that is providing benefit based on perceptions of quality of life. This is very dangerous.
Bill Allen: I agree with Wesley on that.
Question from Radsjewel: If there is any doubt of her state of health, shouldn’t we all be cautious and err on the side of life?
Wesley Smith: Certainly, if there is a reasonable doubt, as I think exists here.
Bill Allen: The Florida law requires erring on the side of life and the courts recognized that and would have erred on the side of life if there had been all the doubt that people are alleging. The standard of evidence in this area of law in Florida is clear and convincing evidence and the courts all found that had been used. The relative qualifications and the relative credibility of the experts has not been accurately reported in the media. Wesley, reasonable doubt is not the standard. That is the standard in criminal law, not end of life law.
Wesley Smith: I understand that. I wasn’t using the term in the legally technical sense. But I don’t believe Judge Greer actually applied it clear and convincing, which is the highest level of civil proof required.
Court TV Host: Many people have suggested that there is a circus-like atmosphere surrounding this entire case. How do you two feel about that?
Question from Jenny: Is this really a case of Congress politicizing an issue for their own benefit?
Bill Allen: I do think it was an incredible historical moment. Both sides were eloquent and spoke from their hearts, but it scares me to think that they were no better informed about the actual case than they were. That is why we have courts and don’t have trials or hearings in the legislature.
Wesley Smith: I didn’t see it as a circus. I was proud to be an American –based on the arguments made by both sides. On one side, advocates were standing up for the right to life of one helpless, defenseless woman. On the other side, were people arguing about the importance of our federal system of divided authority and sovereignty. Both sides cared deeply about the rule of law.
Bill Allen: I also think the spectacle of doctors on the Senate and House Floor claiming to diagnose Terri Schiavo on the basis of videotapes when they have never examined her is terrible.
Question from nadia: The problem I have is that Congress is using their time to intervene in a case that should be held at the state level. Don’t you see a problem with this?
Wesley Smith: I think these two principles are the heart and soul of what the American experiment in liberty are all about. Both sides were principled and standing up for very important aspects of American philosophy.
Bill Allen: Some may have been, but there is no way to separate these important issues from political debate and deliberation. If some were cynical, using this case to make a point when they don’t really care, that is another matter.
Wesley Smith: I think it tells us a lot about the importance we place on individual human life. That seems to me to be all to the good. Some politicians are cynical — on both sides. But that doesn’t detract from the importance of the principles argued by both sides of this remarkable controversy.
Bill Allen: I do see a problem with this, since there was no state action in this case. If Florida as a state government had been restricting her rights, then federal intervention might be warranted. But this is a private matter that was litigated in state court over which there is no federal authority
Wesley Smith: There was state action. Terri is being dehydrated at the order of a court. That is state action. It was a court appointed guardian and an order of court. In California, in the Robert Wendland, case, he was spared from dehydration precisely because the act of the conservator (what California calls a guardian) was considered state action.
Bill Allen: The Florida Supreme Court ruling in Browning suggested that the next of kin decision-maker may allow the judge, based on the testimony of what the patient would have wanted, to make the final decision. That is in Florida constitutional law. So that is exactly what Michael Schiavo did, so people would not accuse him of having a conflict of interest.
Wesley Smith: Indeed, in Florida, the guardian has no power to act unless a judge signs a guardianship plan, giving state approval to what is to be done in the coming year. In this case, it was more. A direct order of court.
Bill Allen: Florida law has a higher privacy protection in its constitution than the U.S. Constitution. So that the privacy of Terri Schiavo in Florida to make this decision without government interference, makes the decision of hers to refuse treatment her act, not the state’s. The judge just recognized what she wanted, not decided what he thought was best
Court TV Host: Follow-ups to your earlier comments about the neurologist who has been cited by Gov. Jeb Bush
Question from Julie2inCA: Bill, I’m sorry, but Dr. Chehsire DID examine Terri. Have you read his report dated March 23, 2005?
Question from Julie2inCA: Dr. Cheshire also asks where the neurologist of record is. Terri has not been examined by a neurologist for three years. Correct?
Bill Allen: Yes, I have. HE admits that he saw her but did not examine her. He did no physical examination, as the other neurologists did, as can be seen in some of the videos.
Wesley Smith: It is my understanding that a PET scan would permit a view of her brain functioning, as opposed to its structure. Why not permit the PET scan?
Bill Allen: He observed her by her bedside, but did not physically examine her. The Cat scan, although only showing structure, shows that so much of her cortex is gone, that it would be impossible for her to respond, since she has almost no cortex left. If she had more cortex, the PET scan might be necessary. Also the EEG tests on the part of her brain cavity where the cortex should be was flatline.
Wesley Smith: Then there is no reason not to try the PET scan as a way to make sure. Also, this diagnosis of PVS is often wrong. People wake up who doctors were SURE never would. My understanding was the EEG was not usable because she moved. If she was flatlined, she wouldn’t have a brain stem function, would she?
Bill Allen: The article that has been cited on misdiagnosis in the British journal was only forty patients, not enough for making statistically sound projections.
Bill Allen: There was EEG for her brain stem; she is not brain-dead by whole brain criteria. But the part of an EEG that reflects higher cortical activity was flatline.
Wesley Smith: Bill, do you think Terri is a person?
Bill Allen: No, I do not. I think having awareness is an essential criterion for personhood. Even minimal awareness would support some criterion of personhood, but I don’t think complete absence of awareness does.
Wesley Smith: This is my big problem with modern bioethics thinking. Personhood theory is very dangerous. It says that being human in and of itself is not morally relevant. It means that some of us have lower worth than others of us. Indeed, there is some advocacy in bioethics of being allowed to do organ harvesting from people in PVS. THIS ISN’T HAPPENING, I STRESS. But it shows where personhood theory leads. Frankly, I see it as the end of universal human rights because it means that we are not all intrinsically equal.
Bill Allen: Well, Wesley, if awareness isn’t a defining criterion of personhood, then on what grounds or basis do you attribute personhood? What is a person without awareness?
Wesley Smith: I think being human in and of itself should be the relevant criterion. Under personhood theory, not only are people l
ike Terri denigrated as non persons, but so too for some, are newborn infants, who are not self-aware. Peter Singer of Princeton comes to mind. If Terri is not a person, should her organs be procured with consent? And consent from Michael?
Bill Allen: A hypothetical: If you could clone a human body without higher cortical brain, but only a brain stem to keep the heart beating and breathing, etc., then would that be a person?
Bill Allen: Yes, I think there should be consent to harvest her organs, just as we allow people to say what they want done with their assets.
Wesley Smith: I don’t like to use the person/non person division. You have described an anencephalic baby. I would consider an anencephalic baby as fully human and born with a terminal disability. In other words, that baby, even though missing most of his or her brain, is fully an “us,” and not an “other.”
Bill Allen: Since it was her body, we should not presume to use it for something else without her prior permission.
Wesley Smith: But what if the prior permission is, as in this case, the husband says. What is being advocated here, is a right to kill for organs based on loss of personhood.
Bill Allen: I don’t agree. I think an anencephalic infant is a non-person. In distinction from an infant with a brain who may not have all the fully developed characteristics of personhood, but does have the potential for personhood. I think this situation is just like other organ donation cases, where the family is allowed to decide to make the donation even if the person who has died never addressed the issue. If the person did not want to be a donor, however, then they organs should not be taken.
Wesley Smith: Very dangerous. There was a case at Loma Linda University some years ago. A doctor asked for anencephalic infants to be donated for possible organ procurement. Soon, doctors were wanting to send babies born with serious disabilities. The doctor stopped the program, shaken. It was written up in the Journal of the American Medical Association.
Bill Allen: I think that is an example where the line that can and should be drawn between anencephalic infants and other seriously ill or congenitally terminally ill infants.
Court TV Host: People online have widely divergent views of Michael Schiavo…
Question from Lala: HI Bill and wesley … What about the claims of abuse to Terri by her husband … and her arriving that morning with broken bones?
Question from saveterri: Doesn’t anyone think Mr. Schiavo’s own actions have provided reason to extend the investigation long enough for Terri to have some tests and rehab?
Question from mdgray: I find it disturbing that the voice of the husband, Terri’s next of kin by legal or biblical interpretation, has had to go on with a legal battle to assert not only his wife’s but his own legal rights.
Bill Allen: These claims have never been verified or even had anyone who would come forward in court to testify to them. They are simply not credible
Wesley Smith: I have heard these allegations and I don’t believe they should be made. There was apparently a bone scan that showed she had injuries in the past. But this is a long shot from proof that Terri was abused by her husband. I am no fan of Michael Schiavo by any stretch. But this is such a serious allegation, it would need far more evidence before it could be responsibly made.
Bill Allen: The guardian ad litem appointed at the Governor’s insistence found no credibility to those claims and he said the evidence shows that Michael was a caring guardian.
Wesley Smith: Michael has abandoned the marriage by starting a new family. I don’t see any other way to look at that issue. The technical legal designation surely is not enough. Being a “husband,” is not alone determinative.
Bill Allen: Well, Florida law places the spouse ahead of the parents in medical decision-making.
Wesley Smith: But it is a preference. It is not mandatory.
Bill Allen: But if there were abuse then that would disqualify the spouse. There has been no abuse, however. This is a difficult situation. Michael sees it as not abandoning Terri, but staying true to her. It would have been easier for him to just walk away and avoid all the death threats.
Question from CRISSI: If and when Terri does pass, how do you think the people will react?
Bill Allen: Many people will be relieved that she has finally been allowed to die in peace, if you can call this peace. But others will be appalled that what they see as an injustice was allowed to occur.
Wesley Smith: I hope they will mourn. I know I will. I hope they will revisit state laws to insist that no one be deprived of food and fluids based on relatively casual conversations. And I hope they will take a greater interest in bioethical issues, which are pushing this society toward agendas — as this discussion demonstrates — in which I don’t believe “the people” want to go.
Bill Allen: I do think, however, that whichever way people see it or a combination of both, it is important to avoid violence.
Wesley Smith: I AGREE THAT VIOLENCE MUST BE AVOIDED! The rule of law is what keeps us free. Injustices are not cured by violence.
Bill Allen: When the U.S. Supreme Court decided the Presidential election in 2000, people on both sides, even those who were angry, remained non-violent. We settle hard questions in this country by courts and law, even when we disagree.
Wesley Smith: Yes.
Court TV Host: You’ve both been extraordinarily generous with your time…any closing thoughts?
Bill Allen: I think that the ability of medicine to extend life is good when people recover from things they would have died from before.
Wesley Smith: I want to thank Bill for a good, candid conversation. And I want to express my appreciation to all of those who have worked so hard to save Terri’s life. It is important to involve ourselves in issues greater than our own life. This has happened in this case quite dramatically. I am quite heartened by the hundreds of thousands of people who cared so deeply about a profoundly disabled woman who they had never met. I think it speaks well of the human heart.
Bill Allen: But when it doesn’t work, it leaves us in a state between life and death that people vary about in their own attitudes. So I think death is becoming a decision for each of us about how we want to die. More reflection in advance and discussion with loved ones will help to avoid this kind of tragedy. But it will not avoid all issues. We will see other cases that are hard go to courts and I hope we are able to handle them with a little better reflection and accuracy than this time.
Wesley Smith: Catch you on the flip side, Bill. I am sure we will meet again.
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