Loyola University Chicago Law Journal Volume 37 Article 3 Issue 2 Winter 2006 2006 Terri Schiavo: Unsettling the Settled Lois Shepherd Florida Sate University College of Law Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Medical Jurisprudence Commons Recommended Citation Lois Shepherd, Terri Schiavo: Unsettling the Settled, 37 Loy. U. Chi. L. J. 297 (2006). Available at: http://lawecommons.luc.edu/luclj/vol37/iss2/3 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Terri Schiavo: Unsettling The Settled Lois Shepherd* I. INTRODUCTION In the early months of 2005, Terri Schiavo's story captured the national public spotlight in ways reminiscent of Karen Ann Quinlan in the 1970s and Nancy Beth Cruzan in the 1980s. All were young women whose lives were tragically altered by traumatic events that left them in what we now call a permanent vegetative state.' Their fates were * D'Alemberte Professor of Law, Florida State University College of Law. I wish to thank the Loyola Law Journal for inviting me to the symposium where I presented this paper. The presentations of the other commentators and the questions and comments of the audience were very insightful and helpful. I also wish to thank Norman Cantor, Barbara Noah, Kathy Cerminara, Mary Crossley, and Mark Hall for discussing several of the issues presented in this paper in ways that were especially helpful to me. Thanks also must go to Barbara Chrisman and Megan Morley for their excellent research assistance. 1. In 1972, two doctors adopted the term "persistent vegetative state" to describe patients who had entered a continuing state of unconsciousness marked by periods of wakefulness. Bryan Jennett & Fred Plum, Persistent Vegetative State After Brain Damage: A Syndrome in Search of a Name, LANCET, Apr. 1972, at 734-37. Since then, those both inside and outside the medical community have adopted the term, but it has come to denote a permanent rather than merely a continuing or persistent condition. BRYAN JENNETr, THE VEGETATIVE STATE: MEDICAL FACTS, ETHICAL AND LEGAL DILEMMAS 4-5 (2002). The term "permanent vegetative state" more accurately describes the condition and may be gaining ground, although a number of statutes that refer to the vegetative state in its permanent condition still use the term "persistent vegetative state." See, e.g., FLA. STAT. § 765.101(12) (2004) (defining "persistent vegetative state" as "a permanent and irreversible condition of unconsciousness in which there is: (a) The absence of voluntary action or cognitive behavior of any kind. (b) An inability to communicate or interact purposefully with the environment."). In this paper, I use the term "permanent vegetative state" to refer to the condition at issue, which is the variant of vegetativeness that is considered irreversible. It should be noted that a number of commentators have protested the use of the term "vegetative" as demeaning because of its suggestion that the patient is something less than a person, a mere "vegetable." See, e.g., Raphael Cohen-Almagor, Some Observations on Post- Coma Unawareness Patients and on Other Forms of Unconscious Patients: Policy Proposals, 16 MED. & L. 451, 461 (1997) ("[T]he term 'vegetative' dehumanizes the patients, suggesting that we speak of some form of sub-human life."); Adam J. Hildebrand, Masked Intentions: The Masquerade of Killing Thoughts Used to Justify Dehydrating and Starving People in a "Persistent Vegetative State" and People with Other Profound Neurological Impairments, 16 ISSUES L. & MED. 143, 149 (2000) (arguing that the term is "an insult to the inherent dignity of the human person"). While I am sympathetic to this argument, the terminology has become so widespread that using a different term may cause confusion, because no alternative has yet achieved significant use. Loyola University Chicago Law Journal [Vol. 37 publicly and vigorously debated in court and in the media.' The controversies surrounding Quinlan and Cruzan generated landmark court rulings, but the legacy of the Schiavo controversy is still unclear. The Schiavo controversy did not significantly further or change end- of-life decision-making law, at least not in immediate or obvious ways. Although Terri Schiavo's parents, Mary and Robert Schindler, fought against the removal of their daughter's feeding tube with just about every conceivable legal argument and exhausted every conceivable 2. See JOSEPH & JULIA QUINLAN WITH PHYLLIS BATTELLE, KAREN ANN: THE QUINLANS TELL THEIR STORY (1977) (describing throughout the book the media and public interest over the fate of Karen Ann Quinlan); WILLIAM H. COLBY, LONG GOODBYE: THE DEATHS OF NANCY CRUZAN (2002) (describing throughout the book the media and public interest in the Cruzan case); Sheryl Gay Stolberg, Schiavo's Legacy: A National Debate; Ethics, Medicine and Politics Collide, INT'L HERALD TRIB., Apr. 1, 2005, News, at 1 ("The life and death of Terri Schiavo intensely public, highly polarizing and played out around the clock on the Internet and television has become a touchstone in American culture."). 3. In In re Quinlan, 355 A.2d 647 (N.J.), cert. denied, 429 U.S. 922 (1976), the New Jersey Supreme Court, in a case of first impression, held that Karen Quinlan had a federal constitutional right to privacy to terminate life-sustaining treatment and that Quinlan's father could act on his daughter's behalf to order removal of the ventilator that aided her respiration. In Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990), the U.S. Supreme Court, while upholding Missouri's requirement that Cruzan's feeding tube could not be removed absent clear and convincing evidence that she would want it removed, stated that a constitutional right to refuse life-sustaining medical treatment could be inferred from the Court's prior decisions. Id. at 278. Many have interpreted Cruzan to establish a constitutional "right to die," if not with assistance, then by withdrawal of unwanted treatment. See In re Browning, 568 So. 2d 4, 10 (Fla. 1990) (citing Cruzan for the proposition that, "[a] competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition"); BARRY R. FURROW ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 1359 (5th ed. 2004) (pointing out that, "Many authoritative sources presumed that the opinion did recognize a constitutionally protected liberty interest in a competent person to refuse unwanted medical treatment. Indeed .... the case was hailed by the New York Times as the first to recognize a right to die."). Cruzan is also cited for the proposition that artificial nutrition and hydration should be considered like other medical treatments that can be withheld or withdrawn according to a patient's wishes, a principle that state courts have uniformly adopted since the Cruzan case. See, e.g., Browning, 568 So. 2d at 11 (citing Cruzan and numerous other court decisions in support of its statement that "Courts overwhelmingly have held that a person may refuse or remove artificial life-support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube."); MARK H. HALL ET AL., HEALTH CARE LAW AND ETHICS 507 (6th ed. 2003) ("The Cruzan case essentially resolved the debate [whether artificial nutrition and hydration could be discontinued] in terms of the law, and now it is widely accepted that patients can refuse any medical treatment."). It is important to note, however, as other commentators have, see, for example FURROW, supra; HALL, supra; DOLGIN & SHEPHERD, supra, that the majority opinion in Cruzan states that the right to refuse unwanted treatment may be inferred from prior decisions of the Court, but does not explicitly recognize such a right. In fact, scholars Alan Meisel and Kathy L. Cerminara state that "Cruzan has ... had virtually no effect on the case law." ALAN MEISEL & KArHY L. CERMINARA, THE RIGHT TO DIE: THE LAW OF END-OF-LIFE DECISION MAKING § 6.03[G][4][b] (3d ed. 2005). Meisel and Cerminara also, however, note that following Cruzan a number of state legislatures moved to loosen restrictions on the removal of artificial nutrition and hydration. Id. 2006] Terri Schiavo Unsettled avenue of relief, appealing to all three branches of government at both state and federal levels and also offering private settlement, they ultimately failed. Circuit Court Judge Greer's original order in February 2000 that Terri Schiavo's feeding tube should be removed in accordance with Florida law ultimately withstood attack.4 Michael Schiavo, Terri Schiavo's husband, presented evidence that Terri Schiavo would not want to continue living in a permanent vegetative state by means of a feeding tube and thus convinced Judge Greer that removal of the feeding tube was proper. Even in the face of legislative and executive insistence, other courts, both at the state appellate level and the federal level, refused to undo that determination.5 Thirteen days after the third and final removal of her feeding tube, Terri Schiavo died on March 31, 2005.6 Cases such as Quinlan and Cruzan remain good law following the Schiavo controversy, as do the many others that have established the constitutional and common law rights of an incompetent individual to withdraw life-sustaining treatment, including the right to withdraw artificial nutrition and hydration.7 Likewise, Florida's statutory apparatus for making decisions to withdraw life-sustaining treatment, developed in the wake of Quinlan, Cruzan, and similar Florida cases, remains intact. Though the Schiavo controversy did not create any broad new pronouncements of law or produce lasting legislation, it did unsettle a number of legal and ethical issues that might have previously appeared settled.