http://thrownback.blogspot.com/2006_03_26_thrownback_archive.html#114380594147438979
One Year Ago Today...
Terri Schiavo, an innocent woman, died as a result of a judge's order permitting her husband to starve and dehydrate her to death.
In commemoration of her death, I am running on my blog today my
Catholic World Report article from May 2005, titled "The Death of Terri Schiavo. This is the first time this article has appeared online. I hope, in reading it, that you will be reminded of how such a grave injustice was done, and the half-truths, deceptions, and outright lies that accompnied and justified it.
The Death of Terri Schiavo - Part One
This article first appeared, in slightly different form, in the May 2005 issue of Catholic World Report. Due to the size of the article, it is continued in a second post below.
If the courts had reconsidered the facts, if doctors had followed procedures, if reporters had asked obvious questions, if bishops had spoken out boldly - a gross injustice migfht have been averted.
On March 31, shortly after 9:00 AM, Terri Schindler-Schiavo died, as the nation, and even the world, watched. She died in the hospice bed to which she had been confined for over five years. Her death has been hailed as a victory for the "right-to-die" movement, and denounced by others as "judicial homicide".
As she lay dying, the media kept a grim countdown of the number of days she had been without food and water, and pundits opined on the cable news shows and in the newspapers about "death with dignity" versus the sanctity of life. Her death, and the circumstances surrounding it, was one commented upon more widely than most in modern history, and yet also probably one of the most misunderstood.
Terri's feeding tube was removed, as Florida Circuit Court Judge George Greer ordered, on March 18, shortly after 2:00 PM. Terri's family - her parents Bob & Mary, and her brother and sister Bobby and Suzanne - had been with Terri for most of the day. Terri had received her last feeding at about 11:00 AM. The Schindlers were told, by the police officers who maintained constant guard outside Terri's room, that they would have to leave. At this point, medical personnel removed the percutaneous gastrostomy (PEG) tube which had been providing Terri's nutrition and hydration for some 15 years. From that moment on, Terri would receive no water or food, and thus began the "dying process" which would end 13 days later.
For the first few days, Terri appeared more or less "normal". She continued to interact with her family, and appeared alert. But after 3 or 4 days, the change in her condition became noticeable: Her skin started to appear dry and lifeless, and she became less responsive. By the seventh day, the Schindlers were telling me, in our daily telephone conversations, that Terri had become "lethargic", and within a few more days, almost entirely unresponsive. Sometime around day 10 or 11 Terri suffered renal failure, which led swiftly to, and was the immediate cause of, her death.
The Last Legal Battles
In the weeks prior to the removal of Terri's feeding tube, and even while Terri lay dying, the Schindlers waged a legal battle to keep Terri alive. On February 25, Judge Greer ordered that Terri's feeding tube was to be removed three weeks hence. He also ruled that he would not hear any further motions or petitions from the Schindlers, except as they related to Terri's "dying process" and her final disposition. As the Associated Press reported:
The judge wrote that he was no longer comfortable granting delays in the family feud, which has been going on for nearly seven years and has been waged in every level of Florida's court system. He said the case must end.
"The court is no longer comfortable granting stays simply upon the filings of new motions," Greer wrote. "There will always be 'new' issues."
The Schindlers, in spite of Judge Greer's decision to refuse new motions, nonetheless filed several in the week following Judge Greer's setting of a new death date. Among these were petitions for new medical evaluations of Terri, a petition to allow Terri and Michael to be divorced, and a request to remove Michael as guardian.
Initially, Judge Greer held to his stated intent and dismissed these motions without hearing their merits. However, when threatened with the prospect of a successful appeal by the Schindlers on due-process grounds, Judge Greer relented and allowed most of the Schindlers' motions to be heard and argued. In the end, though, the hearings made no difference in the outcome of Judge Greer's decisions. During the week of March 7, Judge Greer:
Denied the Schindlers' motion to compel Michael Schiavo's deposition in their case challenging his guardianship.
Denied the Schindlers' motion for a divorce of Terri from Michael. The motion was denied on "Catch-22" grounds: Under the law, only spouses can request a divorce from each other. Since Terri could not speak for herself, she could not request a divorce. Only Michael, as guardian, could make such a request on Terri's behalf. Needless to say, Michael chose not to.
Then Judge Greer:
Denied the Schindlers' motion to remove Michael as guardian.
Denied the Schindlers' motion that attempts be made to feed Terri by mouth once the feeding tube was removed March 18. George Felos, the attorney for Michael Schiavo, argued against this motion by asserting that if Terri was fed by mouth, she might aspirate the food and die an "extended, gruesome death". This line of reasoning struck many as bizarre, given that Felos was seeking Terri's death via starvation and dehydration over the course of a week to ten days.
Judge Greer also denied the Schindlers' request that Terri be allowed to receive Viaticum (Holy Communion for the dying) by mouth. He ruled that if Terri was to be given Communion, it had to be done via her feeding tube.
He denied the Schindlers' motion to allow their daughter to die at their home, noting the parents could visit the Pinellas Park hospice where she lives.
Judge Greer denied the Schindlers request to have Terri's intact body interred: He confirmed Michael's order that Terri was to be cremated upon her death. He also denied the Schindlers motion to allow Terri to be buried in Florida. Michael intends to inter her cremated remains in Pennsylvania, where they are both from.
Judge Greer's ruling against the Schindlers on the matter of feeding by mouth seemed the most indicative of his frame of mind: By precluding attempts, as a "last ditch" measure, to feed her by mouth, the Judge showed that his object was not merely to stop what he might (erroneously) argue is an "extraordinary" means of support, but to make certain that Terri died. One might make an analogy to someone on a respirator: frequently respirators are removed from patients, but sometimes they continue to breathe on their own without support. It is as though a judge were to order not only that a respirator be removed, but that the patient's mouth and nose be sealed with duct tape, just to make sure he can't get any air by any means.
Turning to Lawmakers
Following an unsuccessful round of appeals in the Florida and Federal appellate courts, the Schindlers' efforts turned to obtaining legislative relief. The Schindlers lobbied the Florida legislature to pass a new version of "Terri's Law", which had been struck down as unconstitutional by the Florida Supreme Court. But while the Florida bill seemed to stall, the Schindlers made more progress in the U.S. Congress, where measures intended to grant a new review of Terri's case had been introduced in the House and Senate. The measure introduced in the House, the Incapacitated Persons Protection Act, was a broadly written bill that would have given the right to a Federal hearing to a whole class of persons facing death by removal of nutrition and hydration. The Senate bill was more narrowly construed, providing relief to the Schindlers alone.
Americans were treated to a topsy-turvy public debate in which each side seemed at times to argue according to principles historically embraced by their opponents. Republicans such as House Majority Leader Tom De Lay decried the unaccountability and activism of our courts, while at the same time arguing for the passage of a bill which would bring Terri's case back before those same courts. Democrats, who have in the past defended intervention by Federal courts in matters of state policy, found themselves arguing for State's rights, holding the decisions of the Florida courts sacrosanct.
The debate over the bills went on past the removal of Terri's feeding tube, and indeed, it seemed at points that no measure would be passed. Bobby Schindler went to Washington to lobby for the bills in the House and Senate, and met with every single member of both houses. Congressional sources described Bobby as "very persuasive" in his meetings with legislators. In one meeting, as he laid out the details of Terri's case, audible gasps were heard several times as the members were told of the string of injustices and errors which led to her judicially-ordered starvation.
In spite of the Republican support and Bobby's persuasiveness, there was formidable opposition to passing a law to save Terri. The ringleader of the opposition to the Senate bill, according to Bobby, was none other than Senator Ted Kennedy, the senior Catholic senator from Massachusetts. It struck me as ironic that Kennedy, whose opposition to the death penalty is passionate, led the opposition to a law that would have given Terri the same right to a hearing as condemned criminals. The opposition in the Senate led to the adoption of compromise bill which gave relief to the Schindlers alone, and not the broader protection offered by the House bill.
In the early hours of March 21, the House passed Senate Bill 686, "For the Relief of the Parents of Theresa Marie Schiavo". This bill provided for a de novo review of Terri's case, meaning that all of the issues and facts surrounding her case would be reconsidered. This de novo review was essential: Although Terri's case had come before several state and federal courts numerous times, all of the judges' opinions were based on the same set of factual findings made by Judge Greer in his 1998 decision granting Michael the right to remove Terri's feeding tube. In that decision, Judge Greer ruled as a matter of fact that Terri was in a persistent vegetative state, (PVS) and that Terri had indicated a wish not to go on living should she become dependent on artificial nutrition and hydration. As I have written before, both in CWR (November 2004) and in
Crisis Magazine, these ruling were arrived at in a manner which rode roughshod over rules of civil trial procedure, and with what seemed to be a blind eye to the mountain of evidence contradicting them. The problem the Schindlers have faced, as I wrote in a recent article at
National Review Online:
is that in our legal system, once a judge has ruled on a matter of fact, it is very difficult to revisit such a ruling. Lawyers have a rule of thumb that trial courts hear and rule on questions of fact, and appellate courts rule on questions of law. It is unusual for an appellate court to overturn a lower courts ruling based on errors regarding issues of fact.
And so, at every turn in this case, the Schindlers had to try to undo the faulty rulings of fact previously issued by Judge Greer. They had to go back before Judge Greer himself and try to convince him that he was wrong, and should undo his own rulings. Judge Greer proved unwilling to do so. Higher courts were unwilling to overturn a trial judges rulings of fact and so, ruled against the Schindlers. The de novo review promised by the Federal "Terri's Law" held out the only hope.
A Partisan Struggle
As we all know, that hope was never fulfilled, as the de novo review never materialized. It was well known that many jurists took offense at the passage of Terri's Law, which they interpreted as a Congressional attempt to dictate how they should exercise jurisprudence. Speeches made by Tom De Lay and Senate Majority Leader Bill Frist decrying "activist judges" and an "out-of-control" judiciary solidified the impression that the battle over Terri Schiavo's life had become part of a political struggle: Those on the right saw Congress as trying to check the abuse of power by unaccountable judges. Those on the left saw the ability of judges to enact social change by the exercise of their legal authority imperiled by Terri's Law.
The reaction in the judiciary was evident from the outset. Firstly, federal judges seemed to completely ignore the provision in the new law to grant the de novo review. The "fresh look" at all of the facts and issues of Terri's case simply didn't happen. Instead, the judges confined themselves to re-examining the issues of law, just as they would have if the federal legislation had never passed. But the direction that events would take was indicated by remarks made by a federal judge at the conclusion of the first hearing held after the passage of the federal law. Federal Circuit Judge James Whittemore declined to rule immediately on the Schindlers' request to re-insert Terri's feeding tube, pending new litigation. In a comment that seemed motivated more by pique than any legal considerations, Judge Whitttemore declined also to indicate when he would issue a ruling. He said "I will not tell you when, how or how long it will take."
As it turned out. Judge Whittemore declined altogether the Schindlers' motion, and declined to allow the re-insertion of her feeding tube in light of further appeals. This act set the tone for the judicial decisions to come. In several forays up and down the federal courts system, the Schindlers were rebuffed at every turn. The Schindlers' attorney, David Gibbs, announced on March 28 that their legal remedies were exhausted, and they would file no further motions or appeals.
Errors of Fact
Terri's fate can be seen, ultimately, as the result of Judge Greer's dubious findings of fact at the 2002 evidentiary hearings, at which he concluded that Terri was in a PVS, and that she would not want to live in her disabled condition. The facts were crucial in deciding Terri's fate, as the result of Judge Greer's factual errors was fatal for Terri. These errors filtered into the public debate as well: there can be little doubt that much of the press coverage and commentary simply did not get the facts right concerning Terri's case, and this stream of misinformation weakened pubic support for Terri's cause.
In my 2004 CWR article "Saving Terri's Life" I described how the mainstream media was often content, during the 2003 conflict over the removal of Terri's feeding tube, to simply parrot the characterizations of Terri's case presented by Michael Schiavo and his attorneys rather than actually question their assertions and dig more deeply into the issues. Unfortunately, in this last round of debate and controversy, little changed. Some news outlets, such as Fox News, did a reasonable job of covering the issues fairly, and giving the pro-life position a fair hearing. Some commentators and pundits, such as Fox's Sean Hannity, took on Terri's cause as their own, and became powerful champions for her life. However, much of the media were content to merely repeat or even amplify the "memes" about Terri's case.
(A "meme" is an idea which may have little foundation in actual fact. being the product of rumor, innuendo, or gossip. However, because the idea is in some way convenient or useful, it is picked up and spread casually without investigation, and gradually acquires a patina of truthfulness, simply because it has been repeated so often. Memes become pervasive ideas, and frequently have the power to change public attitudes and perceptions. )
There were a number of memes circulated regarding Terri's case and repeated unquestioningly by the mainstream media. Among these were the assertion, frequently heard on cable talk shows, that "12 (or 16 or 19) judges have heard the case and ruled against the Schindlers." This assertion was offered as an argument for accepting the decision to remove Terri's feeding tube as one arrived at responsibly. But, of course, the number of judges who agree with a decision is irrelevant if all those judges' rulings are based on the same factual errors. Which was precisely the case regarding Terri Schiavo. As related above, all of the subsequent rulings on Terri's case were based on the same fact findings made by Judge Greer, which findings were never re-examined.
Another meme frequently asserted was that "Terri was bulimic." Bulimia is an eating disorder characterized by "bingeing and purging", and can cause serious health problems. This meme is interesting in that it was often introduced as a way of "blaming the victim": the idea being that somehow Terri brought her situation on herself, and therefore deserved her fate. It is also is interesting in that it simply has no foundation in actual fact or evidence. The "Terri was bulimic" meme was the product of speculation offered by Michael Schiavo and his attorneys as to the cause of the cardiac arrest which led to Terri's brain damage. However, there was no talk of Terri suffering from bulimia or other eating disorders among Terri's family or friends before her injury. The assertion did not surface until well after Terri's collapse. Furthermore, there is no actual medical evidence of such a condition, unless you credit the circular reasoning employed by advocates of Terri's death: In this argument, the fact (true) is asserted that bulimia is a known cause of electrolyte imbalance of the sort that caused Terri's cardiac arrest. Then the fact that Terri suffered an electrolyte imbalance is adduced as evidence that she was bulimic. Such an argument would not pass Logic 101, but the power of the meme is that is unexamined.
I personally encountered the power of this meme during a radio talk show interview. In the course of the interview, one of the hosts brought up the assertion that "Terri was bulimic". I pointed out the lack of evidence for the assertion, and the fact that it originated in speculation. The host responded by pointing out that she had read this same "fact" in "a number" of published articles. I answered by describing that memes worked in precisely this manner, and by demonstrating the circularity of the reasoning. After all was said and done, she rejected my argument saying, "well, I have to go with what the published reports indicate rather than what one priest says."
Far more damaging, however, were the memes circulated regarding Terri's medical care and diagnosis. I frequently encountered assertions that all medical options had been exhausted in Terri's case, and that Terri had had the best of care. Both assertions were simply false.
The fact is that Michael Schiavo, as Terri's guardian, allowed no therapy or attempts at rehabilitation since 1992. He also forbade the physical therapy to minimize contractures and muscle atrophy that is commonly provided even for bedridden patients in a vegetative state.
Furthermore, the idea that Terri has had the "best of care" is belied by the fact that, for the last five years of her life, Terri was at a hospice rather than at a nursing home or hospital. By definition, hospices offer a lower "standard of care" than even a nursing home. Hospice care is intended for patients who are recognized as terminal; only basic nursing and palliative care is provided. Therapeutic measures aimed at improving a patient's condition are not offered by hospice.
