Don’t miss this post on Terry Schiavo from Hilzoy at Obsidian Wings. Here’s the bottom line:
First, in this country competent adults have the right to decline medical treatment. This is a very good thing, since many of the things doctors do to their patients would constitute assault if done against those patients’ wills. It is this right that allows cancer patients to decide not to undergo that last excruciating round of chemo that would give them only a slight chance of survival, Jehovah’s Witnesses to refuse the blood transfusions that they believe it would be sinful to receive, and people with painful terminal illnesses to refuse treatment for other diseases, like pneumonia, that offer them the chance of an easier death. This right is extremely important: without it, we could be subjected to serious assaults on our body without our consent, so long as some physician said that those assaults were medically necessary.
Second, courts have held that for these purposes, nutrition and hydration count as life-prolonging treatments, and thus that competent adults have the right to refuse them as well. This is also important: having a feeding tube inserted is a serious violation of a person’s bodily integrity, and people have the right to refuse it. It’s also a point that is often neglected in the coverage of Terri Schiavo’s case. What is happening is not that a court has ordered that she be killed. If courts could order that, there would be no reason to wait for her to die; the court could simply order a lethal injection of some sort. The court has found that she would not have wanted this sort of medical treatment, and thus that it cannot be forced on her. This is completely different.
Under current law, when a person is incompetent to consent to or refuse treatment, evidence of that person’s views and wishes is used to determine whether or not s/he would have consented to treatment. In Terri Schiavo’s case, the courts have determined that she would not have consented. In accordance with what they have found to be her wishes, they are seeking to discontinue the treatment to which she would not have consented. That is: legally, this is a matter of letting her views about her life and her body govern the treatment she is subjected to, not a matter of anyone else’s deciding whether she will live or die. What’s at issue in this case is not “life”; it’s patient autonomy.
These are the larger rights that are at stake in this case.
The thing that bothers me most about this case is that as a society we seem to be indulging our emotions to a greater and greater extent. This case is sad, and the video of Terri Schiavo is sad, and the idea of removing someone’s feeding tube and letting them pass away is scary and horrible. Nobody likes the idea of starvation.
But the reason we have courts, and laws, and procedures for this sort of thing is so that we can try to get past the emotion and make decisions based on evidence. Yesterday, the federal government decided to throw out the results of the objective analysis of this case and instead indulge people’s emotions. That’s bad law. And indeed, to tie this back to last week’s tempest in a teapot, that’s exactly the problem with Professor Volokh’s assertion that executions should involve torture if a criminal did something bad enough — it may satiate people’s emotions (temporarily), but is it just and sensible?
The wide ranging lurch in this country away from valuing reason and deliberation is quite literally terrifying.
Update: this post from Digby is essential.