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The Lesson of Terri Schiavo

Copyright © 2005, 2008, 2009, 2014 by David E. Ross

Background

In February 1990, Terri Schiavo suffered a heart attack that temporarily deprived her brain of oxygen. The damage to her brain left her in a vegetative state, sometimes called a "waking coma". Unable to even swallow — let alone feed herself — Terri received food and water through a tube inserted into her stomach.

Seeing no improvement in his wife's condition after ten years, her husband Michael obtained a court order to have Terri's feeding tube removed. With the support of some friends, Michael asserted that his wife expressed opposition to being kept alive artificially.

Bob and Mary Schindler, Terri's parents, had already been unsuccessful in having Michael Schiavo removed as Terri's guardian. They appealed the judge's order all the way to the Florida supreme court. This effort was also unsuccessful.

The Schindlers were more successful in lobbying the Florida legislature, which passed a bill taking control of the issue away from the courts and giving it to Governor Jeb Bush. Bush signed the bill into law in October 2003. In September 2004, the Florida supreme court declared "Terri's Law" an unconstitutional violation of the separation of powers between the executive, legislative, and judicial branches of government.

On 18 March 2005, Terri's feeding tube was again removed for the third time (the two previous removals in 2000 and 2003 reversed because of reversals of court orders).

Motives and Side Issues

Terri Schiavo may have been self-destructive. Her heart attack was the result of an eating disorder that led to a potassium imbalance. She may have indeed wished to die.

Michael Schiavo's motives might be questioned. After his wife's disability began, he acquired a new girlfriend with whom he is now living. Michael and his girlfriend now have two children.

Shortly after Terri Schiavo's heart attack, Michael Schiavo filed a malpractice lawsuit against her doctor, claiming that a simple blood test would have revealed the potassium deficiency. $750,000 was awarded to Terri in a trust for her ongoing medical care, and $300,000 was awarded to Michael for the loss of his wife's companionship.

• Bob Schindler demanded a share of Michael's settlement. The Schindlers could have been parties to the malpractice suit but were not. They did not share in the risks of waging a lawsuit that could have failed, but they wanted a share of the results.
• Before Terri Schiavo finally died, Michael had already spent more than $300,000 in legal costs, defending his right as Terri's husband to remain her guardian.
• The Schindlers unsuccessfully pressured Michael to divorce Terri. If he had divorced her and then she died, anything left in her trust would have gone to her parents because Terri left no will.
• By the time Terri actually died, however, her trust fund had been depleted to about $40,000 to $50,000, less than 7% of the original amount, less than the cost of keeping Terri alive for one year.

While money might have been the original cause for the breakdown of relations between Michael and his in-laws, money was no longer a factor when Terri died.

None of those trying to keep Terri alive were really concerned about Terri's best interests. The Schindlers never reconciled themselves to the fact that the Terri they loved no longer existed; their motive was to preserve the fantasy that she might recover. The others — strangers who never knew Terri — were trying to advance their own religious "right to life" dogmas. (Anti-abortion terrorist Randall Terry became a leading supporter of the Schindlers.)

Even after Terri's death, the contention between Michael Schiavo and the Schindlers did not abate.

• Michael asked for an autopsy to prove that Terri had too little brain tissue remaining to be aware or to respond as her parents asserted she did for them, to prove the fallacy of Governor Jeb Bush's "diagnosis" that Terri was merely in a minimally conscious state instead of a permanently vegetative state. The Schindlers wanted a full physical examination to prove — by finding signs of broken bones — that Michael had beaten his wife and thereby caused her brain damage.
• While Michael planned to have Terri cremated and buried in Pennsylvania (where they both grew up), the Schindlers attempted (unsuccessfully) to get a court order prohibiting cremation and mandating that Terri be buried in Florida — in a grave marked "Schindler" instead of "Schiavo".
• Michael Schiavo and the Schindlers planned competing memorial services for Terri at two different churches.

To aid the Schindlers in their costly legal battle to save Terri's life, well-wishers around the nation sent them contributions. According to the Los Angeles Times (1 April), the Schindlers rewarded those donors by selling their names and addresses to various political organizations.

Legal and Political Wrangling

Besides "Terri's Law", several political and legal actions attempted to interfere with Michael's quest to allow his wife to die.

• Waiting until almost the last minute, the Florida Department of Children and Families tried to get a court order to maintain Terri's feeding tube while the agency investigated possible abuse against the disabled woman. The judge denied the request, noting that the agency was citing incidents that happened years ago and had plenty of time before then to become involved. The judge recognized that the claim of abuse was merely a delaying subterfuge. State appeals courts upheld the judge.
• The U.S. House of Representatives passed a bill to move the entire issue into federal courts. The U.S. Senate balked. Committees in both houses of Congress then subpoenaed Terri to appear at hearings, despite the fact that she could not communicate or even understand. Again, a judge refused to stay the order to remove Terri's feeding tube, denying requests from the Congressional committees. Twice previously, the U.S. Supreme Court refused to intervene. Once again, the Supreme Court refused, this time rejecting the committees' appeals.

  *** Begin Right Sidebar ***

  The Republicans in Congress — from a party whose fundamental goals have long been to stop government interference in our personal lives, to strengthen states' rights, and to rein in activist judges — met on a Sunday and well past midnight into Monday to enact a law that very much interferes in Michael and Terri Schiavo's lives; totally discarding over 10 years of state court hearings, decrees, and decisions; and mandating the federal judiciary to be activist.

  *** End Right Sidebar ***

• Terri Schiavo's feeding tube was removed on 18 March.
• After another false start, the U.S. Senate passed S.686 on 20  March 2005 (possibly without a legal quorum present) and sent it to the House of Representatives. Finally voting at about 1:00am on 21 March, the House passed the bill and sent it to President Bush, who promptly signed it. S.686 removed jurisdiction over Terri Schiavo from Florida state courts, placing the issue in the hands of the federal courts.
• In accord with S.686 (also designated Public Law #109-3), U.S. District Judge James Whittemore (Central District of Florida) heard a petition from the Schindlers on 21 March. The next day, Judge Whittemore issued a 13-page decision, finding that the Schindlers would be highly unlikely to prevail in their claims. The judge therefore refused to order Terri Schiavo's feeding tube reinserted. Although S.686 directed the federal courts to ignore prior actions of the Florida state courts, that was impossible because the Schindlers' petition repeatedly referred to state court decisions, which they asserted had violated Terri's rights.

  Judge Whittemore's decision was immediately appealed by the Schindlers to the 11th Circuit Court of Appeals in Atlanta. In the very early hours of 23 March, a three-judge panel of the Appeals Court issued a 2-1 decision upholding Judge Whittemore, finding that his decision was "carefully thought-out" and "not an abuse of discretion" (two key points in any judicial appeal). The Appeals Court also noted that the Congressional Record shows that any mandate upon the judiciary to issue an injunction or temporary restraining order forcing Terri Schiavo's feeding tube to be restored had been intentionally removed from S.686 before it was passed. While the courts often act to preserve the current situation, the Appeals Court noted that forcing a change of the current situation (i.e., ordering the tube reinserted after it had already been removed) is contrary to judicial practice prior to a full trial. The Schindlers immediately filed a new appeal to the entire 12-member bench of the 11th Circuit Court of Appeals. Almost as quickly, the entire bench refused (10-2) to hear the appeal without even writing a formal decision. Late on 23 March, the Schindlers appealed again to the U.S. Supreme Court. On 24 March, the Supreme Court — for the fourth time — refused to hear the appeal.

  The Schindlers filed a new petition with District Judge Whittemore late on 24 March, resulting in a three-hour hearing Thursday evening. This time, the Schindlers claimed (among other things) that Terri Schiavo was being denied her rights under the 8th Amendment to the Constitution:

  Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  They also claimed that Michael Schiavo was in violation of the Americans with Disability Act (ADA). On 25 March, Judge Whittemore again denied their request, ruling that the 8th Amendment applies only in criminal cases and that Terri had been neither convicted nor sentenced for a crime. He also ruled that the actions of a husband to his wife cannot be considered discrimination under the ADA. The Schindlers again appealed to the 11th Circuit Court of Appeals, but late that night the Appeals Court again denied their appeal, this time by a vote of 3-0 by the same three judges who heard the earlier appeal. Although the Schindlers then announced that they would not pursue further legal action, four days later (29 March) they filed an appeal to the full Circuit Court. On 30 March, the full Circuit Court declined to conduct a hearing; although no vote was announced, it is known that the Schindlers failed to get even the 7 votes (out of 12 judges) needed to hold a hearing. (Appeals Judge Stanley Birch provided a written opinion that S.686 was unconstitutional and that the federal courts therefore had no authority to intervene.) That same day, the U.S. Supreme Court — for the fifth time — refused to hear a appeal from the Schindlers.
• In a separate legal action on 25 March — this time in state court — the Schindlers again tried to get Judge George Greer to order Terri Schiavo's feeding tube reinserted. Terri's parents claim that their daughter expressed the wish to live — after 15 years of silence during which EEGs showed no brain activity. Supposedly, Terri expressed this wish while her feeding tube was being removed on 18 March. The Schindlers volunteered no explanation as to why they did not present this "evidence" previously, during the week since the tube was removed. On 26 March, Judge Greer denied the Schindlers' request, telling them that their delay in raising their claim about Terri talking — which could have been raised in court proceedings days earlier — now made their claim inadmissible. Later that same day, on an appeal from the Schindlers, the Florida supreme court upheld Judge Greer's decision.
• A bill pending in the Florida legislature that would mandate the sustaining of life for any incompetent patient who had never expressed contrary wishes in writing was voted down in the state senate at the same time that the 11th Circuit Court of Appeals turned down the Schindlers' first appeal. Several state legislators who opposed the bill received death threats.
• Despite the testimony of numerous doctors during Michael Schiavo's years fighting this issue in court — all confirming that Terri Schiavo was in a permanent vegetative state — Florida Governor Jeb Bush claimed on 23 March that Terri had been misdiagnosed. He shopped for a neurologist to support his amateur diagnosis of "minimally conscious state" and found one whose religious faith far outweighs his medical judgement. Dr. William P. Cheshire Jr. — described by Governor Bush as a "renowned neurologist" but relatively unknown among other neurologists — confirmed the Governor's diagnosis without actually examining Terri Schiavo, an action that other neurologists described as verging on malpractice.
• In a desperation move to buy time, Governor Bush's Department of Children and Families tried to seize physical custody of Terri and move her to another facility where they could reinsert her feeding tube, contrary to existing court orders. However, Judge George Greer (who issued the order to remove the feeding tube the previous Friday) denied all attempts to eliminate the guardianship by Michael Schiavo over his wife and issued an order to the Pinellas County Sheriff to ensure that the Governor's minions stayed out of the hospice caring for Terri Schiavo. On 24 March, Governor Bush appealed Judge Greer's action to the Florida supreme court, which denied the appeal; apparently S.686 eliminated the state's supreme court from having jurisdiction over the issue.

Hope

The Schindlers' obsessive pursuit of court rulings and legislation resulted from a parent's fear that they might outlive their children. No family trauma is worse than a parent attending the funeral of a child. Thus, the Schindlers clung to the hope that somehow their daughter might recover.

In one of their last court actions — in Florida state court with Judge George Greer — the Schindlers claimed that Terri Schiavo said, "I want to live" just minutes before the feeding tube was removed. The parents say Schiavo said "AHHHHH [I]" and "WAAAAAAA [want]" when asked to repeat the phrase "I want to live."

Unfortunately, hope for the Schindlers reflects 15 years of denial. According to Dr. Walter Bradley — chairman of the Neurology Department of the Miller School of Medicine at the University of Miami — CT scans of Terri Schiavo's brain made in 1996 show that her cerebrum was dead and its space filled mostly with spinal fluid rather than nerve tissues. His analysis was confirmed by two other neurologists. Thus, Terri was incapable of thought, hearing, sight, voluntary movement, and emotions. (Contrary to her father's hopes, she could not possibly be alert.) Only her cerebellum and medulla — controlling her heartbeat, breathing, and digestion — still functioned.

According to other neurologists, the video of Terri Schiavo apparently responding to her family — shown repeatedly on TV — and any sounds she made were involuntary reflexes controlled by her cerebellum and medulla. They could not be alert responses involving thought, desire, or emotion. The reality was that the video was only a very short segment intended by the Schindlers to support their claims. The longer, complete video showed that Terri was actually non-responsive.

In the end, the Schindlers' hope was false. Recovery for Terri Schiavo was not possible. The daughter they loved ceased to exist in 1990. Their fight to keep Terri alive was based on fantasy.

Political Hypocrisy

What should have been a private family matter exploded into a very public, national, political issue. In the process, the true colors of our Republican President, Republican-controlled Congress, the Republican governor of Florida, and the Republican-dominated Florida legislature were revealed. The sharp conflict between Republican ideals and Republican practices must not be ignored.

The Lesson

For 15 years, things might have been quite different.

• Michael Schiavo and the Schindlers might not have become bitter enemies.
• Instead of an obsessive clinging to an impossible hope, the Schindlers might have been able to get on with their lives.
• Large sums of money might not have been spent on medical care and legal fights.
• Hundreds of strangers — busybodies who never knew Terri Schiavo — would not have spent days out of their otherwise boring lives demonstrating outside the Hospice of the Florida Suncoast.
• Death threats (taken very seriously by the FBI) would not have been made against Michael Schiavo, a number of judges, and some members of the Florida legislature.
• Congress would not have created a horrific precedent by enacting the odious S.686.
• A body could have found the peace that its mind had already found.

All the years wasted by Terri Schiavo's family, all the lives placed on hold, all the prolonged grief — all this could have been avoided if only Terri Schiavo had expressed in writing what she had already discussed with her husband, how she would want to be treated if she ever became incapacitated.

What happened to Terri Schiavo and her husband proves that there are far too many busybodies who do not know you but who would willingly interfere in personal life-and-death decisions affecting you. Many of them are motivated by religious beliefs that might be quite contrary to your own. Some will go to any extent to enforce their beliefs, including the involvement of the government.

To prevent such interference, what everyone needs is a durable power of attorney for health care, clearly stating who has the legal right to make medical decisions for you when you can no longer make those decisions for yourself. Both my wife and I have executed such powers of attorney and had them notarized. Addressing some of the issues raised by Terri Schiavo's situation, mine states:

No, you do not have to state such "pull the plug" wishes. You might instead want to be kept alive at all costs. What you must do, however, is express your individual wishes in writing and give someone legal authority to ensure that those wishes are fulfilled.

Many believe that living wills, advance directives, or durable powers of attorney are needed only by the elderly who are nearing the point where they might become incapacitated. However, Terri Schiavo was not yet 27 when she had her heart attack.

The lesson of Terri Schiavo is that none of us should create the turmoil for our own families that her family suffered.

Annette P. (a former coworker of mine) sent me an E-mail message with her own version of a living will. Beware! Annette has a strange but enjoyable sense of humor.

The Autopsy

On 15 June 2005, the Pinellas County Medical Examiner released his autopsy report on Terri Schiavo.

• Contrary to statements by the Schindlers, there was no evidence that Michael Schiavo had ever physically abused his wife.
• Contrary to those who claimed Terri expressed a desire to remain alive just before her feeding tube was removed, Dr. Stephen Nelson (a forensic pathologist who assisted in the autopsy) declared: "She would not have been able to form any cognitive thought. There was a massive loss of brain tissue."
• Contrary to assertions that Terri was alert and that she actively watched those who visited her, Terri became blind shortly after her heart attack in 1990. Her eyes moved, but they did not see.

The most important finding of the autopsy was that no amount of therapy would have helped to regenerate Terri Schiavo's brain. The hope of her parents that proper treatment and therapy would help her to recover was a fantasy.

Before she died, Senator Bill Frist (TN, R) claimed that Terri made eye-contact with those around her. After the autopsy report was released, Representative Barney Frank (MA, D) noted that Senator Frist "was talking about making eye contact with a blind person". Frank also said the federal legislation in the Schiavo case was "a mix of ideology, religious zealotry, and political pandering — it was one of the worst legislative witches' brews that we have ever seen."

Some Final Thoughts

• The decision that Michael Schiavo fought so hard to defend is the same decision that I would want my own family to make about me. For me, removing a feeding tube would be the correct decision. According to Terri's friends who testified in court when Michael first sought an order allowing the tube to be removed, it was also the correct decision for Terri.
• Despite many recent advances, medical science still has limits. Not every illness or disability can be cured. The Schindlers held unrealistic expectations when they hoped Terri might recover. Because of their delusional fantasy, they prolonged Terri's suffering and created national turmoil.
• Terri Schiavo was not murdered! Removing her feeding tube was not a criminal act. Ending artificial means of sustenance meant that her body finally reached the same state that her conscience, consciousness, and perhaps even her soul had reached 15 years earlier.
• Marriage means that spouses help and protect each other. It means that each spouse knows the other's wishes far better than their parents. It means that, when one spouse becomes unable to make decisions about his or her own health care, the other spouse becomes the primary decision-maker. And when one spouse dies, the surviving spouse determines where and how the deceased is buried. Unless there is clear evidence of spousal abuse unrelated to the decisions being made, parents have no right to interfere. (The courts — state and federal — ruled that the decision to remove Terri Schiavo's feeding tube was not abuse.) Parents may give advice and offer comfort, but they should not be allowed to override one spouse making decisions for the other.
• Some politicians and activists recognize no limits when exploiting a family's tragedy — no matter how personal or private — to score points with the voters or create support for their cause. When this effort proves to have a negative impact on the public, they then grasp at straws to "save face".
  • After the autopsy report was released, Senator Frist was questioned about comments he made during the passage of S.686. Frist denied on the Today show (16 June) that he ever made a medical judgement about Terri Schiavo and insisted "I never said she responded." The official transcript of his Senate floor speech in the Congressional Record shows quite differently. During the debate on S.686, not only did Frist strongly doubt that Terri Schiavo was in a permanent vegetative state, but he also said that "she certainly seems to respond to visual stimuli." He now denies ever making such statements.
  • Some 15 years after Terri Schiavo's heart attack, Florida Governor Jeb Bush sought a criminal investigation into a reported delay between Michael Schiavo finding his wife unconscious and calling 911. This was a blatant attempt to deflect criticism against Bush for trying to save a woman who was beyond saving. Acknowledging that there were some discrepancies in the record, State Attorney Bernie McCabe still found Michael Schiavo's statements — that he called 911 immediately — to be consistent. McCabe's report concluded:
    This consistency, coupled with the varying recollections of the precise time offered by other interested parties, lead me to the conclusion that such discrepancies are not indicative of criminal activity and thus not material to any potential investigation.

19 March 2005
Updated 18 September 2014

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