From Cruzan to Schiavo: Similar Bedfellows in Fact and at Law

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Whatever else may be said about it, Terri Schiavo's death was legal. It scrupulously complied with Florida state law. (1) Under similar facts, a similar result would occur under the laws of most (if not all) states). (2) Further, those state laws are constitutional. They comply with the letter and spirit of the constitutional regime outlined in the key United States Supreme Court decision dealing with the issue of terminating life-sustaining medical treatment for incapacitated patients, Cruzan v. Director, Missouri Department of Health. (3) Indeed, Terri Schiavo's case cannot be materially distinguished from Nancy Cruzan's case. Reaching a different result in the Schiavo case would require that Cruzan be ignored, overruled, or distinguished to the point that its meaning would be reversed. This article examines how the result in Schiavo inevitably follows from the reasoning in Cruzan. Pro-life reformers intent on preventing future Schiavo-type deaths must change both (1) state laws like that of the Florida Health Care Advance Directive Act (4) and (2) the larger body of common and constitutional law in which they are situated.


Although some partisans dispute various details of the Schiavo case, for purposes of this article I presume that the following material facts are true. In 1990 at age 26, Terri Schiavo suffered brain damage caused by a cardiac arrest possibly brought on by a potassium deficiency in her blood due to bulimia. Every doctor who personally examined her determined that she was in a "persistent vegetative state." A feeding tube was used to provide nutrition and hydration, without which she would die. In the annals of medicine, virtually no one has regained consciousness after being in a persistent vegetative state for as long as Schiavo, and no one has ever done so without suffering severe, permanent physical and mental impairment. (5) In 1998, after seven years of continuing medical care for Schiavo, her husband requested removal of the feeding tube. Her parents objected, and the issue went to court.

Schiavo had not executed any form of health care advance directive (such as a living will or durable power of attorney for health care). A Florida circuit court found (1) that Schiavo was in a persistent vegetative state and (2) that she would not want to be kept alive in this condition "on a machine." This second finding was based on the testimony of Michael Schiavo and his siblings regarding oral statements that Schiavo had made to them prior to her illness, which the court found to be clear and convincing evidence as to Schiavo's wishes. The court ordered that Schiavo's feeding tube be removed. Schiavo's parents appealed this decision, but it was upheld by nineteen separate judges over an eight-year legal battle. On March 18, 2005, in compliance with the court order, Schiavo's feeding tube was disconnected. She died 13 days later.

Compare these facts with those of the Cruzan case, as stated in the majority opinion by Chief Justice Rehnquist. (6) On December 11, 1983, at age 25, Nancy Cruzan suffered severe brain damage after she lost control of her car and the vehicle overturned. When paramedics arrived at the accident scene, Cruzan was not breathing and her heart had stopped. An attending neurosurgeon concluded that she had suffered cerebral contusions compounded by significant lack of oxygen. Permanent brain damage results from a lack of oxygen after just six minutes; it was estimated that Cruzan lacked oxygen for at least twice that long. In the weeks that followed her accident, Cruzan passed from a coma to a persistent vegetative state from which she never recovered. A feeding tube was used to provide her nutrition and hydration. As an adult resident of Missouri, Cruzan was cared for in a state hospital at government expense. Five years later, after it became apparent that Cruzan had virtually no chance of regaining her mental facilities, her parents (as next of kin) asked that the feeding tube be disconnected and that Cruzan be allowed to die from a lack of food and water. …