The murky side of right-to-die law

The high-profile battle over the fate of Terri Schiavo, a Florida woman who has spent 13 years in a vegetative state, is drawing national attention to a heart-wrenching and often legally murky question: When can third parties assert a right to die for patients who can't decide for themselves?

Ms. Schiavo's case built to a climax this week as Florida's legislature and governor intervened to thwart a judicial ruling allowing her husband to have feeding tubes removed. The battle - between branches of government on one level, and between Schiavo's husband and her parents on another - is extraordinary. But it symbolizes tough issues facing families, doctors, and the courts nationwide.

Legal precedents and everyday moral guidelines can seem inadequate to provide answers in the toughest cases, such as this one when a patient is incapacitated yet superficially appears aware. Worse, Ms. Schiavo leaves behind neither a living will nor a family that agrees what's best for her.

"Ultimately, when the patient isn't able to speak, ... you're going to get disagreements and different interpretations," says Prof. David Orentlicher of Indiana University's Center on Law and Health. "There's going to be some inevitable problems."

Less than 20 percent of Americans take advantage of living wills that detail their wishes or formally grant power of attorney to someone else to make medical decisions on their behalf.

In cases when neither exists, states differ in how they proceed, Mr. Orentlicher says.

Some states put a premium on the medical judgment of doctors who look at what would be objectively best for the patient. Others allow families to decide when a patient is terminally ill or permanently unconscious, with a pecking order that puts the wishes of spouses before those of parents, children, or siblings.

A few states, including Florida, Missouri, and New York, require those seeking to remove feeding tubes to pass a high legal bar - requiring "clear and convincing" evidence of a patient's intent.

In Schiavo's case, Florida's courts repeatedly found her husband had met that standard. He testified that his wife told him she would not wish to be kept alive by artificial means well before she collapsed from a heart attack in 1990, suffering oxygen starvation to the brain.

Schiavo's parents have tried to raise doubts about Mr. Schiavo's credibility, noting that her supposed wishes were conveyed to him only verbally and without any witnesses. It was not until 1993, they assert - after Mr Schiavo had hired a lawyer and won $750,000 for Terri's care, along with a $300,000 payout for "loss of consort" - that he "suddenly remembered that Terri had made some vague remarks about not wanting to be sustained on anything 'artificial' if she became incapacitated," they said in a statement issued Tuesday.

Florida Gov. Jeb Bush and the Florida state legislature were sympathetic to the blood family's arguments, and to a widely publicized video showing Ms. Schiavo appearing to respond to her mother's touch. The legislation forced doctors at a hospice near Clearwater, Florida, to reinsert Schiavo's gastric feeding tube so that she may live - five days after it was removed on the orders of a circuit court judge so that she may die.

Legal experts say the legislature's after-the-fact bill is likely to be blocked by the state court as an impermissible assault on the separation of constitutional powers. "Judicial authority depends on people accepting their judgment as final, even if one disagrees with the merits of that judgment. This case is unprecedented and it's dangerous," says Lars Noah, a University of Florida law professor.

To let stand a law clearly written to thwart a judicial ruling, many analysts argue, would open the door to intrusion on the authority of courts in other matters.

Still, it is a decision welcomed by right-to-life groups from a governor who has developed a controversial track record of going out on a limb for their cause. Earlier this year, Bush appointed a legal guardian for an unborn fetus in a court case.

Randall Terry, founder of the pro-life organization Operation Rescue who joined the parents' campaign argues that the governor's decision this week proves "life really is sacred."

Such issues have come to national attention before. This case, indeed, has striking parallels to one in 1999 relating to Hugh Finn, whose wife successfully pressed to remove him from a feeding tube four years after a devastating car crash left him in a vegetative state. Virginia Gov. Jim Gilmore unsuccessfully intervened in the case on behalf of Finn's blood relatives all the way to the state supreme court.

In the first case of its kind, the New Jersey Supreme Court ruled in 1976 that Karen Quinlan could be removed from a respirator. In the 1990 case of Nancy Cruzan, the US Supreme Court upheld a patient's right to die after a state standard requiring "clear and convincing evidence" of an the incompetent patient's wishes is met.

Some observers predict the Schiavo case may lead to renewed efforts to roll back gains made by the "right-to-die" movement over the past decade. "This is going to trigger efforts by right-to-life folks to fight for more restrictive legislation about when health surrogates can terminate treatment," says University of Louisville law professor Robert Stenger.