The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Wednesday, October 29, 2003

The LA Times recently published a couple of letters ranting (literally, pretty much -- they were nasty) about how awful it was that right-wing pro-life zealots had gotten Terri Schiavo's feeding tube replaced. I think we're more divided that most of us realize; if people see this situation as a simple battle between the "right to die" and absolutist religious insistence that life, or anything like it, must be protected, their anger at the other side has completely blinded them.

Look -- we're not dealing with a case where a woman is brain-dead, with no hope of recovery. Nor is it a case where her clearly-expressed wishes not to be kept alive artificially are being disregarded. What we have here is a classic conflict of interest, as well as a legitimate question of what evidentiary standards are required to be satisfied before making a grave and irrevocable decision.

The facts are simple: Terri Schiavo may never come out of her persistent vegetative state, or maybe she will. In addition, she may have at one time expressed a wish not to be kept alive with a feeding tube, or maybe she didn't.

With respect to the first uncertainty, it's undisputed that people do occasionally come out of persistent vegetative states. In fact, some people thought to be in such states are actually conscious, but unable to communicate or move. Such cases may be rare, but not unheard of. As someone else pointed out today, it's odd that the Left should be so concerned about the possibility that an innocent man could be executed, and outright dismissive of the possibility that a conscious, living woman could be starved to death because of an erroneous diagnosis of her brain's condition.

In other contexts, the more serious the decision to be taken, the stricter is the evidentiary standard. When the court system is contemplating a man's execution, an evidentiary "gold standard" is supposed to apply. (It doesn't always, but there has yet to be a proven example of an innocent man's execution since the death penalty was restored in the late seventies.) The statute of frauds is another example. The law requires that certain contracts be in writing, because it is considered that they are so serious, or so otherwise susceptible to dishonesty, that allegations of an oral contract are not allowed.

One would think that when a life is at stake, the same kind of elevated evidentiary standard ought to apply. If you need a writing to establish a real estate contract, maybe we ought to require that an expression of a wish not to be kept alive with a feeding tube must also be in writing. The concept of a living will is well-established in the law, and it's incredibly easy to make one. It's just too easy for someone simply to say that a person once told them, with no other witnesses, that the person didn't want to be kept alive.

In fact, it was no trouble at all for Terry Schiavo's husband to say that she made such a statement. Conveniently, it happened while the two of them were watching television, alone. And that leads me to the second thing that I think should absolutely jump out of the page or screen of whoever reads about this story: the husband's colossal conflict of interest.

A little background, for anyone unaware: Mr. Schiavo has taken up with another woman, who he will be free to marry once his unconscious wife dies. In addition, he stands to obtain a significant sum of money upon her death.

In the legal profession, we disqualify lawyers for one-tenth of that conflict of interest, and in questions less than one-thousandth as serious.

Of course, the cases of the conflicted attorney and the conflicted husband may not be analogous. The spouse of an unconscious person will very often stand to benefit, through life insurance or the like, from the unconscious spouse's death. And a person's husband or wife, being generally that person's most frequent companion, would be the person most likely to hear an offhand comment about not wanting to be kept alive with a feeding tube or the like. In short, the most likely source for any evidence may also be the most unreliable.

This seems to me to argue for a requirement, like the statute of frauds, that a desire to have treatment withheld if a person becomes persistently unconscious must be expressed in a writing.

Of course, that may penalize persons who genuinely desire not to be kept alive in persistent vegetative states, but who simply haven't gotten around to writing their wishes down. On the other hand, in that case, the difficulty in knowing whether an unresponsive person is actually unconscious comes back into play. So we have to balance the potential harms from each course (i.e. allowing removal of feeding tubes despite the absence of reliable evidence vs. requiring a writing or other less potentially ambiguous evidence to make the decision). An unconscious person won't be conscious that he is being artificially maintained, while a conscious person who is unable to communicate will certainly be conscious that he is dying, if his feeding or maintenance are being removed. On the balance, it seems to me that dying slowly while being conscious but unable to do anything about it is far worse than continuing to live unconscious.

This balancing seems fairly clear to me, but reasonable people can differ. I don't think, though, that Schiavo's case is even close. The husband's conflict is so blatant that I simply can't see how he could remotely be considered trustworthy.


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