Academic journal article
By Burt, Robert A.
Constitutional Commentary , Vol. 22, No. 3
The public understanding of Terri Schiavo's death was refracted through the polarized politics of the abortion wars. By the time the Florida legislature intervened in her case in 2004 and the United States Congress followed suit in 2005, the debate surrounding her had become hardened into the familiar antagonisms of our times--religion vs. secularism, pro-life vs. prochoice, liberals vs. conservatives. On the left, the claim was that Terri had chosen to end her life rather than endure the endless limbo of her persistent vegetative state but that outsiders were attempting to force their own conception of a "life worth living" on her; on the right, the claim was that Terri's medical condition was uncertain, that she might benefit from some further therapy, and that her "right to life" was being scorned by those pressing for removal of her feeding tube. (1)
This stylized conflict obscured a more immediate issue at stake in Terri's case. This issue was presented by the family conflict between Terri's husband, Michael Schiavo, and her parents, Robert and Mary Schindler, about the continuance of Terri's life-prolonging medical treatment. The issue was not the substantive disagreement between them but the simple fact of their conflict regardless of its merits. By the time of Terri's death, this conflict had escalated beyond any sensible proportions and beyond even the most remote possibility of reconciliation between them. Thus after Terri's death, following the removal of her feeding tube as Michael had sought, her parents were not in formed of the time or location of her burial. (2) Soon thereafter, in response to the Schindlers' repeated allegations, a criminal investigation was initiated by Governor Jeb Bush of Florida to determine whether Michael was responsible for injuring Terri fifteen years earlier when she suffered her anoxic event. (3) This increasingly bitter family conflict was the impetus for the proliferating public engagement as competing advocates for Terri's husband and parents sought allies to join their struggle. The family conflict was generally understood, however, as merely the backdrop for the real issue at stake--that is, whether Terri's treatment should be continued. The family conflict was noted by Florida courts as the self-evident justification for their initial intervention to render a definitive judgment about Terri's continued treatment. The need for and propriety of governmental involvement in resolving this dispute was similarly viewed as self-evident in the subsequent involvement of Florida's governor and legislature, and then Congress. The Florida courts rebuffed this involvement on the basis of constitutional assertions of judicial autonomy; (4) the federal courts rapidly disposed of substantive claims for which Congress had authorized de novo review. (5) But none of the courts and virtually none of the other official and unofficial disputants about Terri's fate explicitly asked whether this family dispute should properly have been resolved in any public forum. A principle of family privacy--a principle, I would argue, of constitutional dimensions--was thereby dishonored.
I. PROTECTING TERRI SCHIAVO'S RIGHT TO SELF-DETERMINATION
Neither Terri's husband nor her parents resisted governmental intervention as such. Michael explicitly claimed that governmental assistance was necessary and appropriate to carry out Terri's wishes, notwithstanding that she had never completed an advance directive or appointed any health care proxy to act on her behalf if she became incompetent. The Schindlers asserted both in judicial and subsequent legislative proceedings that Terri's medical condition was treatable and on this substantive basis argued that state officials should not direct abandonment of life-prolonging treatment. Neither Michael nor the Schindlers asserted that they were pursuing interests of their own; they purported to speak only for and on behalf of Terri. And Florida law specified that the only proper focus for inquiry was Terri's prior wishes. …