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Killing Terri Schiavo

By Paulsen, Michael Stokes | Constitutional Commentary, Winter 2005 | Go to article overview

Killing Terri Schiavo


Paulsen, Michael Stokes, Constitutional Commentary


Much ink and wind was expended during the tragic last few weeks of Terri Schiavo's life, debating the facts and issues surrounding her death. But it reduces to this: The State of Florida, acting through its judiciary, ordered a severely disabled woman to be slowly dehydrated and starved to death, by removing her feeding tube.

This sort of thing, of course, happens all the time. (1) The exceptional feature of the Terri Schiavo case is not the situation it presented or the result produced, but the extraordinary attention it received, out of all proportion to anything genuinely unique about its facts. Many commentators have pointed this out, curiously implying that this fact somehow justified the state's actions or rendered illegitimate the extraordinary efforts to save her life. It does not. To be sure, there is something odd in the treatment of Terri Schiavo's case as if it were one-of-a-kind. There is a certain Saving Private Ryan element to Killing Terri Schiavo: When so many others are being killed, why should anyone care about, let alone take heroic efforts to save, this one person? But just as the Steven Spielberg's famous movie frames a compelling story, the real-world story of Terri Schiavo is paradigmatic as well as dramatic. Whether the legal system produced a defensible result in this case tells us a lot about how the legal system should act in the many, many other cases that are not so very different. Unique, unusual attention on this case affords an opportunity for focused examination of issues of general importance.

The conventional legal fiction usually asserted to justify the killing of Terri Schiavo--a legal fiction that, while of recent vintage, rapidly has become familiar and deeply embedded in the law--was that this is what she would have wanted, and therefore the state was justified in ordering it. By all accounts, Terri Schiavo had extremely little or no cognitive capacity. She was not in a coma, but she likely was in a "persistent vegetative state." Terri Schiavo had left no living will or advance medical directive as to what her desires were with respect to her medical care (and food and water) under such circumstances. Florida law provided that her husband could apply to a court for an order that she be starved and dehydrated to death if he could satisfy a court by "clear and convincing evidence" that this is what she wanted. A state trial judge so found, and the appellate courts deferred to the trial judge's determination.

There is no doubt that Terri Schiavo could have continued to live indefinitely in her deeply disabled condition. Her condition was tragic but not terminal. Removal of food and water, even if characterized as a decision regarding her "medical care," affirmatively killed her. At best, then, the killing of Terri Schiavo was a state-assisted suicide. At worst, it was a state-ordered execution of a disabled person who had committed no crime and was unable to speak in her own defense. Which of the two it was--bad, or much worse--depends on the reliability of the determination of Terri Schiavo's "consent" to the slow taking of her life by order of a state judicial officer.

My modest contention here is that the Constitution's requirement that no person be deprived of his or her life without due process of law requires, at minimum, that the state not kill an individual who is not competent to express his or her wish for death and has given no advance directive, except on an evidentiary showing that this was the victim's desire satisfying a standard of proof at least as high as that required to execute a murderer-proof beyond a reasonable doubt of the proposition(s) thought to justify the state's life-depriving act. Moreover, as with the imposition of the death penalty, the greatest of procedural care and caution must be taken in guarding against a wrongful decision, because of the terrible human finality of the state's action.

I submit that, except on the basis of proof beyond a reasonable doubt that the victim possessed and expressed a desire to be killed under the circumstances, state action to deprive the victim of her life fails to satisfy the Due Process Clause of the Constitution.

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