Now that the Schiavo controversy has quieted down a bit, I think it is worth looking towards the future: How can we make certain that this sad story does not repeat itself? I should state up front that I, along with most other self-styled liberals and not just a few conservatives, felt that Schiavo’s feeding tube was properly removed. However, the case was a troubling one. The real bottom-line question was “What did Terri want?” In the absence of direct evidence of her wishes, the court was required to rely on hearsay, and different witnesses testified differently. Ultimately, Judge Greer chose to rely on husband Michael Schiavo and one of Michael’s siblings, and having read his opinion, I think properly so. But I’m not sure
that any of us can be truly confident that this is what she wanted. Further, in future cases, it is likely that different judges will assess similar evidence differently, and so everyone involved in these cases will face uncertainty.
Let’s ask the question this way: Would we rather (1) err in favor of keeping people alive on machines or with tubes against their wills, or (2) err in favor of allowing them to die them against their wills?
To me, the answer is blatantly obvious: we’d rather keep a few too many people alive than allow too many to die. The presumption should favor life, and I think most people, liberal or conservative, agree with me.
For the future, states should require a living will and/or a durable power of attorney in order to defeat the presumption favoring life.
This would carry three benefits:
1. It would affirm our commitment to life and end-of-life care; 2. It would promote certainty; and 3. Most importantly, it would create incentives for people to do what we really want: draw up living wills and power of attorneys. (These documents are available online and relatively simple to execute.) A living will in Terri’s case would have avoided the entire spectacle. Update: Here’s a link to a living will that is consonant with Halakha.
Posted by Administrators on April 7, 2005 at 02:06 PM
Comments
I am concerned about the idea of imposing a reasonable doubt standard in cases like this, though. We have well insulated reasonable doubt to criminal cases and expanding it into the civil arena may invite further expansions of that standard for politically popular causes. That said, federalism is the underpinning issue of the federal courts’ decisions here. The USSC isn’t going to get involved in family law issues, as they are traditionally a power reserved to the States and honestly they wouldn’t want a divorce proceeding to make it to their doorstep. Congressional involvement in that matter bothered me. I am a bit rusty in this area, but I have been meaning to look at the Rooker-Feldman doctrine for the first time since ConLaw. The idea that if a State does not do something the majority in Congress likes, that the federal government will step in an trample on the State’s decision is an insult to the entire concept of Federalism & dual sovereignty. Not to mention antithetical to the traditional precepts of the Republican party. My pre-coffee $.02 for the day.
Posted by: Joel | Apr 8, 2005 9:58:05 AM
Since Joel and I are mostly in agreement, I will address my comments here to Clerk, who I think makes valid points. First, whatever the polls say about what most Americans want, I still believe that most Americans would prefer a presumption in favor of life–and a relatively strong one at that. I certainly do, particularly in a case such as this one where Schiavo herself was apparently experiencing little pain. Second, the trouble with succession preferences (spouse, then parents, then whomever) is demonstrated precisely by the Schiavo case. As I understand it, Florida law DOES preference the spouse over the parents, unless the parents can prove through litigation that the spouse is wrong as to the wishes of the patient. So you are going to get ugly court battles, and “the truth” will always be in question. That said, I do agree with you that there is a serious concern that people will not draw up such documents, even if the law were as I have proposed. Perhaps a compromise could be worked out. Judge Greer (properly) applied the “clear and convincing evidence” standard. Maybe we should instead use a “beyond reasonable doubt” standard, which would require more evidence that someone wanted to be disconnected. A living will or power of attorney would conclusively rebut the life presumption, but it would not be absolutely necessary. For instance, where “everyone knows” or agrees that this is what the patient wanted, the presumption would also be rebutted. Of course, this is a compromise, and as such, it vindicates neither position. It reduces incentives to have living wills (which is a bad thing); and it invites Schiavo-type shenanigans (which is also a bad thing). Further, we have to really assess whether the doctrinal difference between “clear and convincing” and “beyond reasonable doubt” actually make a pratical difference. Would Michael have met the “reasonable doubt” standard? I have no idea. This is why the most offensive thing about this entire case was congress’s involvement. These are difficult issues, and there can be differences of opinion. The Supreme Court basically set the framework in Cruzan in determining that a person has a constitutional right to refuse treatment; but the Court properly left it to the states to determine how such a refusal must be expressed. There is value to federalism, and so let’s let it work. Let Florida adopt the living will requirement; let Connecticut adopt the “clear and convincing” standard; and let Michigan adopt the “reasonable doubt” standard. In the future, I intend to post more on this particular viewpoint–the role of the Court, the federal government, and the state–in the context of abortion and same-sex marriage.
Posted by: AmosAnon1 | Apr 7, 2005 5:53:58 PM
While the point and counter-point offered are both valid, I come down on the side of Anon on this. If we are going to have political reprecussions because of courts following the law and otherwise impartially doing the job of the judiciary from the Schiavo debacle, lets have it be a clear cut policy preference. FedClerk, you have a point that people are not going to consult an attorney much more often now and that there will still be many people without a living will or a durable power of attorney for health care decisions. Should this matter at the policy level? We in the law will often ignore the realpolitik of the situation and work with the abstractions embodied in the law to paint with the broadest strokes the policy and work from there. Such is the nature of the common law systems and if we are going to avoid a protracted legal battle over the desire of patients, then lets look at enacting law, at the State or Federal level, that creates a presumption. Yes, there are people who may never get around to making their desires known who would not have chosen to remain in a PVS but who would be under this hypothetical law. I think you had it right at the very end of your post when you equated this sort of a policy to the nature of intestate succession. We just need to watch for several years to see if a change does occur.
Posted by: Joel | Apr 7, 2005 5:27:42 PM
This is an interesting proposal, and is strikingly similar to states’ intestate succession statutes. Those statutes also affirm general societal preferences (assets to spouse, family, etc) create some air of “certainty” and REALLY create incentives for people to create their own wills and estate planning devices. However, there are a few problems I see. First, while I agree on a general level that most people would in the abstract favor keeping too many people alive vs. killing too many people, according to the statistics I’ve seen, a majority of Americans would NOT prefer to be kept in a constant vegitative state. So the “presumption of life” might be safer, but it’s not likely to be effectuating the general will of the people (or the statistical likelihood that patient X wants to be kept alive). There are other serious problems with such a presumption in many cases. For example, even after Schiavo, many people will not draw up appropriate documentation. With an overriding presumption that can only be defeated with a legal instrument, many people may be “forced” to be kept alive, against their wishes, at a great cost (both financially and emotionally) to their families and society. What about the case where “everyone knows” the person wouldn’t want to be kept alive — let’s say this hypothetical person even told her physician so, but did not execute the legal instrument (or did not execute it validly). This person may be on a ventilator (or a feeding tube) for decades… her life isn’t being sustained, her death is being prolonged–against her clear wishes. In Iowa (where I’m licensed to practice, but do not practice law) in the absence of a durable power of attorney for health care or Iowa’s version of a “living will” there is a “decision succession” list for who decides whether to continue treatment that only prolongs the dying process. It goes something like: Spouse, children, parents, siblings, with the next class being able to decide only if there is no one in the previous class (or no one willing to make the decision in the previous class). Now, the ultimate decision can be litigated in court if there’s evidence that the decisionmaker is acting against the will of the patient (which makes the solution much sloppier than a presumption of life) but at least there’s a clear decisionmaker. This is a less “clean” process, but it probably works to effectuate the patient’s wishes more effectively than a life-presumption solution. It may be that a life-presumption would encourage more people to execute health care directives the way that intestate succession encourages wills. However, most Americans do not regularly consult lawyers and even after this mess, many will not seek to execute health care directives on their own. They are much more likely to talk about the issues over coffee, and those statements–hearsay though they may be–can be a possible basis to help loved ones make those crucial health care decisions.
Posted by: Fed District Clerk I | Apr 7, 2005 5:14:50 PM