Sunday, March 20, 2005

Terri Schiavo - What Next?

The U.S. House of Representatives will soon pass a bill to save Terri Schiavo's life, at least for now. The Senate has already passed the bill, which the President will sign as soon as he receives it. Word will immediately be sent to restore Terri's feeding tube. It appears the emergency is over.

What happens next? Terri's fate will rest with a federal trial judge. The judge will hold a hearing to determine whether the State of Florida can order, in effect, Terri's death.

The state judge in Terri's case followed a state statute in issuing his order to remove Terri's feeding tube. Unlike many death penalty cases reviewed by the federal courts, the state law is not likely to be seriously challenged. The state law almost certainly complies with federal law and the U.S. Constitution.

To determine whether Florida may proceed to carry out the state judge's order, the federal court must necessarily review the 2 crucial issues: Terri's condition and Terri's wishes. In the original trial, the state judge found by clear and convincing evidence, and the Florida court of appeals agreed, that (1) Terri was in a persistent vegetative state, which was a terminal condition from which there was no hope of recovery and that would lead to Terri's death, and (2) Terri's wish was that she would not want to live in such a condition. If the state judge's initial fact findings stand after federal court review, Florida may proceed to carry out the state judge's order.

Terri's condition has been much discussed. Terri's parents and their lawyer believe that Terri is not in a persistent vegetative state and in fact responds to them. Some believe that Terri herself on Friday tried to say that she wanted to live. Having read the Florida appellate court decisions, I reluctantly expect that Terri's condition will be confirmed to be a terminal condition. Nevertheless, the federal court will hear all the evidence on Terri's condition and may decide differently.

Terri's wishes have also been much discussed. (It is important to note that the wishes that matter are Terri's, not her husband's and not her parents'.) The state trial judge's finding of Terri's wish to die was based on the testimony of 3 witnesses: her husband Michael, his brother, and Michael's brother's wife. Since the trial, Michael's motives and credibility have been questioned. At the very least, this federal court hearing will embarrass Michael, if he can feel embarrassment, and should embarrass the ACLU. After all, the ACLU's fight supposedly for Terri's right to die should be premised at the very least on her wish to die and not on Michael's wish for her to die.

Remember that the finding of Terri's wish to die had to be supported by clear and convincing evidence, a higher standard than the usual civil-case standard of a preponderance of the evidence. It has always seemed surprising to me that the trial judge based his decision on the testimony of 3 witnesses, one of whom stands to profit financially and the other 2 of whom are related to the first one. Michael also had to testify in an earlier medical malpractice case that Terri would live a long time and would receive care for the rest of her natural life. He would have received far less money in that malpractice case if he had testified that he would seek to remove her feeding tube as soon as he received the money. The credibility issues, if raised at the first state trial, should have made Michael's testimony seem conflicting, motivated by money, and generally not credible. Without credible testimony from Michael, the state trial judge's finding by clear and convincing evidence of Terri's wish to die defies common sense.

The federal court review will no doubt receive extensive press coverage. In such a fish bowl atmosphere, the federal judge is likely to be very careful to reach a decision that can be supported in the court of public opinion. That does not mean that Terri's death sentence will be permanently lifted. The federal judge, like all the Florida appellate judges, may still confirm the state trial judge's findings and conclusions. In that case, the State of Florida will proceed to remove Terri's feeding tube.

Whatever happens, all the evidence will be aired and considered. The federal court may decide that Terri does not wish to die, or at least there is not enough evidence to support that. However, if Terri's condition is a terminal condition and if Terri did wish to die, then we should honor her wish.

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