The Illegal Death of Terri Schiavo
In a world where men sometimes make bad laws, by which I mean the real world, it is beyond question possible for a man of law to find himself torn by conflicting loyalties. While he is professionally committed to uphold, interpret, and apply the positive law, he may find that doing so seems in specific instances to conflict with higher moral norms. The addition in our own partially court-governed country of court decisions to the set of “laws” only makes such a conflict between the normal operation of the legal profession and the moral law more likely, adding as it does an extra opportunity—and one with fewer checks and balances than the legislative process has—for the intrusion of bad conclusions and bad policies into the larger fabric of law which the lawyer, the prosecutor, or the lower-court judge may consider himself bound to follow and apply.
Such a conflict seems to have moved conservative Alabama Attorney General William Pryor, in the name of the rule of law, to drive Alabama Supreme Court Justice Roy Moore out of office when Moore defied a federal court order to remove the Ten Commandments from the state courthouse. In a harrowing court scene, Pryor asked Moore, “If you resume your job, will you continue to acknowledge God?”(Gettleman 2003) While one may strongly disagree (as I do) with Pryor’s view both of Moore’s duties and of his own, one may feel some pity (as I also do), for a man who finds himself in Pryor’s position.
But the mantle of positive law must not be thrown over actions that are not only morally wrong but also not, in fact, required by the positive law under any construal. The picture of the man of good will torn in two directions by the written law and his own conscience is a powerful one and one which raises many interesting questions, but it is not a picture we should invoke when it does not apply, especially when invoking it may seem to minimize or mitigate evil.
Yet such is the image that persists in some minds of Judge George W. Greer, who ordered the death of Terri Schiavo and whose orders were finally carried out in Terri’s prolonged and formal killing. Those who believe that the law was in fact on Greer’s side can take one of several positions. For those who see Terri’s killing for the great evil that it was, it may seem that the case is a classic one of the conflict between the written law and the moral law, raising immediately the question of whether unjust positive laws are in fact null and whether Greer was bound to order Terri’s protection in defiance of whatever might have been “in the law.” Others, even those who believe it was wrong to kill Terri, may view Greer as a mere factotum of the system and may place the entire blame instead on the legislators or the higher courts who penned the controlling positive law of the case (See Miller 2005). Those who supported Greer’s decision, morally as well as legally, may complacently invoke “the law” as if it did, indeed, justify his acts.
The idea that Greer was merely following the law is called into question in the first instance by the very nature of his role in the Schiavo case. “Following the law” seems to imply the action either of a pure executive (for example, arresting or punishing people who break a law passed by the legislature) or of a judge acting as interpreter of a law already in place. But as the controlling law in Florida is structured, a trial judge in a case like Terri’s has instead a role almost exactly like that of a jury:1 The judge is a trier of fact—specifically, of the fact regarding the incompetent person’s wishes regarding reception or withdrawal of medical care. It would still be possible for a judge of good will to find himself confronted with an intolerable conflict of morals and law in such a situation. For example, there might be very strong evidence, perhaps in the form of credible testimony regarding clear and explicit oral statements, that a person had expressed a definite wish to die rather than to receive food and water from a feeding tube. So something akin to the question of what to do when “following the law” would lead one to be complicit in wrong-doing could arise. Nonetheless, the phrase “just following the law” does not quite seem to describe what is involved when the judge does not merely interpret the law or even apply the law to some new situation (as, for example, when a court decides how the First Amendment applies to the Internet) but actually determines the facts of the case. The question, then, of whether or not Greer was merely following the law in ordering Terri’s death will unavoidably involve an evaluation of the evidence on which Greer ruled.
But first, a review of the controlling law in Florida at the time is in order. The central, relevant law in Florida at the time of Terri’s trial and subsequent death was the Browning decision of 1989-1990. An opinion was handed down by the Florida 2nd District Court of Appeals in 1989 refusing (with obvious regret) a petition to allow Mrs. Browning’s feeding tube to be removed immediately but referring the question to the Florida Supreme Court, complete with detailed suggestions for the way that the Supreme Court might fashion a “constitutional remedy” for people in Mrs. Browning’s situation. The Florida Supreme Court was only too willing to comply. Since the Supreme Court opinion claimed to find a right in the Florida Constitution for people not in a so-called “persistent vegetative state” (as apparently Mrs. Browning was not) to be dehydrated to death, subsequent statutory law would mirror these decisions very closely, as indeed it did.2
The Browning decision permitted a proxy to make the decision to refuse medical care, including artificial nutrition and hydration, for an incompetent person. The proxy is supposed to determine a number of things—for example, that the person cannot be reasonably expected to recover legal competency and that any conditions the person himself has placed upon the withdrawal of care have been satisfied. The most important of these determinations for purposes of Terri’s case was the determination that the person himself would have wanted the medical care in question to be withdrawn. All these determinations by the proxy are to be made by the standard of “clear and convincing evidence.”
This standard, which was crucial to the legal situation in Terri’s case, is the highest standard of evidence provided for civil cases. It is a higher standard than “preponderance of the evidence” but lower than the “beyond reasonable doubt” standard used in criminal cases. Browning describes clear and convincing evidence like this:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established (Browning 1989, p. 273).
The implication that the “trier of fact” in whose mind the weight of evidence produces this conviction should be a reasonable person seems obvious, though it is not made explicit. In the same passage the decision also states,
In making this difficult decision, a surrogate decisionmaker should err on the side of life. In this state, all natural persons not only possess a right of privacy, they also possess “the right to enjoy and defend life and liberty, to pursue happiness . . . .”…In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.
Ironically, the appellate court in Terri’s own case cited this very injunction to “err on the side of life” in cases of doubt and implied that it had been followed in Terri’s case (Schiavo 2001, p. 179).
In Terri’s case, the proxy was Judge Greer, since Terri’s parents had challenged Michael Schiavo’s guardianship and the decision Michael wished to make. It is useful to remember that Greer’s decision was, formally and legally speaking, the proxy decision. He was supposedly acting as Terri’s agent and determining her wishes himself, not simply giving the decision over to Michael to make. Hence, Greer was bound by the relevant case law to determine for himself, by clear and convincing evidence, that Terri would have wanted her food and hydration withdrawn until she died. Let us, then, turn to the evidence on which Greer based his decision.
Five witnesses testified about things Terri had said that might indicate her wishes in that crucial trial before Judge Greer in the year 2000. Testifying that she would not have wanted to be dehydrated to death were her mother, Mary Schindler, and a life-long friend, Diane Meyer. Both of these witnesses testified about comments Terri had made regarding the case of Karen Ann Quinlan, who was removed from a ventilator after a court battle in 1976, continued to receive nutrition and hydration, and died naturally in 1985. (The date of Quinlan’s death turned out to be very important, as I will explain below.) According to Terri’s mother, she and Terri discussed the Quinlan case when it was being covered on television, and Terri was very upset at the parents’ attempt to have Quinlan’s life support withdrawn. Mrs. Schindler reported that Terri said, “Just leave her alone. Leave her. If they take her off, she might die. Just leave her alone, and she will die whenever” (Karp 2005, p. 1A).3
Terri’s friend Diane Meyer testified regarding a conversation which, she said, took place in 1982. Meyer made a joke to Terri which began, “What is the state vegetable of New Jersey?” The punch line was, “Karen Ann Quinlan.”
There was an incident that happened one summer where I told a poor joke about Karen Ann Quinlan. I remember distinctly because Terri never lost her temper with me. This time she did. She told me that she did not find the joke funny. She did not approve of what was going on or what happened in the Karen Ann Quinlan case. I remember one of the things she said is how did they know she would want this. How did they know she wouldn’t want to go on. She was so strong about it. Terri, to take that strong of a stand and say something so strongly and come back at me the way she did, it really embedded in my memory (Testimony of Diane Meyer 2000, p. 767).
Meyer expanded on this by explaining, “[W]hat I remember specifically was her talking about how do they know what she feels,” and she confirmed testimony she had given at deposition that Terri had said, “How do they know she wants this? She may be there and want to continue living” (Testimony of Diane Meyer 2000, pp. 782-3).
On the side supporting Terri’s dehydration were Terri’s husband, Michael Schiavo, his brother, Scott Schiavo, and his sister-in-law (married to a different brother), Joan Schiavo. O. Carter Snead, following transcripts of the trial, summarizes and partially quotes Michael Schiavo’s testimony. Michael said that
many years prior on a train ride, Ms. Schiavo stated that if she “ever had to be a burden to anybody like [her uncle was to her grandmother], [she didn’t] want to live like that.” Ms. Schiavo’s uncle had been in a car accident, and was disabled: his right arm was paralyzed, he walked with a severe limp, and had slurred speech. Ms. Schiavo’s elderly and ailing grandmother was the sole caretaker for the uncle. Second, Mr. Schiavo testified that he and Ms. Schiavo watched documentaries involving disabled individuals who were profoundly dependant upon others. In response to the suffering of these patients, Ms. Schiavo purportedly asked Mr. Schiavo not to “keep her alive on anything artificial.” (Snead 2006, p. 16)4
Scott Schiavo stated that Terri had made a statement about her own wishes in response to the final days of Scott’s grandmother. Scott vividly described his grandmother as being sustained by a machine which was “lifting [her] off the bed for air. . . [and causing] her chest [to] pump up” (Snead 2006, pp. 16-17). According to Scott, relatives including Terri were sitting around after the grandmother’s funeral discussing the situation, and in that context, Terri said, “If I ever go like that, just let me go. Don’t leave me there. I don’t want to be kept alive on a machine” (Snead 2006, p. 17).5
Joan Schiavo had this to say about a conversation with Terri:
We had watched a movie one time on television. It was about somebody. I don’t remember. It was about a guy who had an accident and he was in a comma [sic]. There was no help for him. We had stated that if that ever happened to one of us, in our lifetime, we would not want to go through that. That we would want it stated in our will we would want the tubes and everything taken out (Snead 2006, p. 17).
Joan was notably vague about the movie, saying that the character in it was on a “breathing machine” or a “feeding machine,” adding, “I don’t remember the movie. I really don’t remember the movie” (Snead 2006, p. 17). When pushed by Michael Schiavo’s attorney as to what Terri had actually said, Joan did not have much to add beyond Terri’s distress at the situation in the movie and a desire not to “go through” what the man in the movie went through.
- As best you can recall, what did Terri say in response to seeing that movie?
- She did not like the movie. Just the whole aspect of family and friends having to come and see their son or friend like that, she thought it was horrible….
- Did Terri say anything about being afraid to die and not wanting to let go?
- Hm-umm. You mean if she was on those machines or in general?
- Talking about those machines.
- No. She did not want to live like that. She didn’t want to go through that. Have people come and see her like that. Do that to her family and friends.
- That is what she said?
- Um-hmm (Testimony of Joan Schiavo 2000, pp. 233-4).
And that was all. And that was enough for Judge Greer. Greer stated that the evidence just summarized was clear and convincing evidence that Terri would want to be dehydrated to death over more than a week, and he so ruled. This finding of fact regarding Terri’s wishes poisoned all the subsequent trials and appeals, for appeals courts are hesitant to overturn a trial court’s finding of fact.6
How did Judge Greer manage to come to such a conclusion on such evidence? When we remember that the appellate court’s Browning opinion actually tells the finder of fact to “err on the side of life” in cases of doubt, the result seems even more incredible. An examination of Greer’s crucial ruling in 2000 reveals not an objective evaluation of the case but rather a bias, an intention to come to a pre-determined conclusion. Indeed, there is something almost casual about this bias. Greer does not write with his teeth gritted but rather with a kind of insolent assumption of power and of his right to twist the data into the shape he prefers. One can hardly escape the impression that in Greer’s mind, dehydrating people to death on the basis of scanty evidence which is dubbed “clear and convincing” by the magic of his own pronouncement is all in a day’s work.
Greer’s treatment of Diane Meyer’s evidence reveals the shoddiness of his approach. The lawyer arguing for Terri’s dehydration, George Felos, had dramatically called Mrs. Schindler’s evidence in question by producing newspaper clippings showing that the Quinlan case was actually in the news when Terri was 11 or 12 years old, not 17 or older, as Mrs. Schindler had thought she was at the time of their conversation. Quinlan was removed from a ventilator in 1976, though she did not die at that time. Since Mrs. Schindler had apparently thought that the conversation was prompted by such news stories, and since Terri had spoken as if the decision about Quinlan’s ventilator remained in doubt (“Just leave her alone….If they take her off, she might die…”), it is actually plausible enough that that conversation did take place before Terri turned 13, at the end of 1976.7 But Greer, carried away by this convenient way of getting rid of inconvenient evidence, attempted to use the same technique to rule out Diane Meyer’s testimony as well. Without even naming Meyer or giving any coherent account of her evidence, he dismisses it like this:
A witness called by Respondents testified to similar conversations with Terri Schiavo but stated that they occurred during the summer of 1982. While that witness appeared believable at the outset, the court noted two quotes from the discussion between she [sic] and Terri Schiavo which raise serious doubts about the time frame. Both quotes are in the present tense and upon cross-examination the witness did not alter them. The first quote involved a bad joke and used the word “is.” The second quote involved a response from Terri Schiavo which used the word “are”. The court is mystified as to how these present tense verbs could have been used some six years after the death of Karen Ann Quinlin [sic]. The court further notes that this witness had quite specific memory during trial but much less memory a few weeks earlier on deposition. At trial she mentioned seeing the television movie on Karen Ann Quinlin [sic] and had no hesitantly [sic] in testifying that this was a “replay” of that movie and she watched such replay at college in Pennsylvania. She also knew precisely what song appeared on a TV program on a Friday evening when Petitioner was away at McDonald’s training school. While the court certainly does not conclude that the bad joke and comment did not occur, the court is drawn to the conclusion that this discussion most likely occurred in the same time frame as the similar comments to Mrs. Schindler. This could well have occurred during this time frame since the witness and Terri Schiavo...spent portions of their summer vacation together which would have included the mid-1970’s (Greer 2000, p. 5).
Presumably, Greer’s reference to the word “is” concerns the joke question, “What is the state vegetable of New Jersey?” This would be a puerile objection to the claim that the conversation took place in 1982 even if Karen Ann Quinlan had been already dead at that time, as jokes retain their form even if the situation that gave rise to them is over. Such a joke certainly could have been made after Quinlan’s death. But since Greer was simply mistaken about the date of Quinlan’s death, the objection becomes completely empty. Quinlan could still have been referred to as existing with the verb “is” in 1982.
Greer’s statement about the verb “are” is another piece of carelessness (at least) on his part. He implies that Meyer spontaneously attributed a statement to Terri using the present-tense verb “are” to refer to the parents’ action in the Quinlan case and that she did not change this statement under cross-examination. But this is not correct. The transcript of Meyer’s testimony reveals that the word “are” was introduced by George Felos in cross-questioning. In Meyer’s testimony quoted above, she said that Terri “did not approve of what was going on or what happened in the Karen Ann Quinlan case.” When Felos cross-questioned her, he pushed her to say that Terri had said that she did not approve of what Quinlan’s parents “are doing.”
- Now I believe you mentioned that you—that Terri’s comment was that she did not approve of what the parents are doing?
- She did not approve of what happened. What the parents are doing.
- What the parents are doing. Would you agree that what the parents were doing…was trying to remove or seeking permission to remove the respirator from Karen Ann Quinlan?
- Yes, sir.
- Wouldn’t you agree that the statement, “I don’t agree with what the parents are doing” would make no sense if the parents had already done the act?
- I see what you’re saying there, but what I’m saying is what I believe Terri was talking about is it was ongoing….It was their position I think she was objecting to….What I’m saying is what you are talking about is one word. “Are” as opposed to “were.” I’m saying, in the course of memory, it is semantics. It was the opinion. What was important to me is what she was expressing in terms to her objection to what their intent was (Testimony of Diane Meyer 2000, pp. 786-7).
Meyer’s point, in the face of Felos’s leading questions, is fairly clear. She is testifying that Terri said she disagreed with the parents’ approach, opinion, actions, and intent regarding Karen Ann Quinlan, but that this is a semantic impression and that she does not definitely remember that Terri said, “I don’t agree with what the parents are doing.” In fact, so far from Meyer’s sticking to the phrase “are doing,” that phrase is first suggested by Felos himself, and Meyer rephrases it at first as, “She did not approve of what happened.” Moreover, Meyer’s statement that “it was ongoing” and her impressions of the conversation—her attribution to Terri of words like “wants” and “feels” to describe Quinlan—make even better sense when one considers that Quinlan was, in fact, alive in 1982.
Greer’s attempt to impeach Meyer’s evidence on the grounds of her more detailed memory at trial is (to use Greer’s own word) mystifying. While he states that he is not implying fabrication on Meyer’s part, this seems to be exactly what he is implying—that Meyer either made up details between deposition and trial or made up a connection between such details and the conversation with Terri in order to bolster a false claim about when the conversation took place. But while a witness may indeed add details that he had not mentioned before to try to convince others that he is remembering correctly and testifying truly, it does not follow that he is fabricating anything. It is entirely possible that he has given more thought to the matter in the meanwhile or is trying to be clearer, more definite, and more circumstantial when given another chance to speak. Meyer in fact stated definitely that this was what had happened. She had been disturbed by her own uncertainty at deposition as to when the conversation took place and had thought through the matter since then, concluding that it must have been after graduation from high school, because she and Terri were in the car her parents had given her when the conversation took place. She also had thought in the meanwhile about what had prompted her to make the Karen Ann Quinlan joke and had remembered a movie on television about Quinlan that had been shown in her college dorm lounge (Testimony 2000, pp. 767-8). If anything, those details created an opportunity for Meyer’s testimony to be falsified by checking on the details. But this did not happen. Rather, Greer faults Meyer for bringing forward additional details per se and implies that these additional details call her veracity into question, which looks very much like an attempt to find some excuse or other for ruling out testimony that, on Greer’s own account, “appeared believable.”
By the time we reach Greer’s summing up toward the end of his order, he speaks as if it has been established that Meyer’s testimony concerns a conversation that took place when Terri was a child.
There are some comments or statement [sic] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years old truly reflect upon her intention regarding the situation at hand (Greer 2000, p. 5).
Five years later, when Terri was still alive as a result of her parents’ continuation of the legal battle, Judge Greer was confronted with his error about Quinlan’s death. He brushed off the error and continued to discount Meyer’s evidence.
Her applicable testimony regarding the conversations about Karen Ann Quinlan was in the present tense. Since the subject was the removal of the life support that occurred in the 1970s, her testimony that the conversations took place in 1982 was not credible. The fact that Karen Ann Quinlan did not die until 1985 does not change the impact of her testimony. Moreover, though the witness appeared credible at first, as her testimony progressed it became clear to the court that she was not an unbiased witness…Also, as noted in the February 11, 2000, court order, the witness lost credibility due to her regaining memory between her deposition and trial (Greer 2005, pp. 2-3).
There might be some merit to Greer’s argument if Meyer had quoted a statement similar to the one Terri’s mother remembered, such as, “She said it was wrong for the parents to be trying to take Karen Quinlan off life support, because if they took her off life support, she might die.” This type of statement would make it more plausible that the conversation took place while Quinlan’s being taken off life support was still in question. The only thing that Meyer attributed to Terri that was even remotely of this sort was, “She may be there and want to continue living.” This might be taken to imply that Quinlan’s life support situation was in doubt at the time of the conversation, on the argument that Terri anticipated her dying if the life support were removed. But this is something of a stretch and certainly does not give strong reason to think that the conversation took place before 1976, especially in the face of Meyer’s specific testimony that it took place in a car that she received only at the end of high school. There is nothing in the conversation as Meyer recounted it that could not have taken place in 1982. Moreover, this was not the argument Greer had made earlier. Greer had argued that no one would have used the word “is” to refer in conversation to Quinlan herself years after she was dead, which is clearly a very different argument. Greer attempted in 2005 to avoid admitting that he made a relevant error at the earlier trial.
In the 2005 order, Greer again begins a sentence by admitting that Meyer “appeared credible at first,” but this time, deprived of the opportunity to make arch statements about his “mystification” and Quinlan’s death, he makes a different claim that he had not made before—that Meyer was not “unbiased.” Not only does he not say how he divined Meyer’s bias, this attempt to discredit Meyer is fairly ridiculous in the context, considering that Michael and his relatives were surely not “unbiased.” As Greer’s 2000 court order indicates at some length, the two sides of the family were deeply estranged over Terri, and feelings were running high. The idea that any witnesses on either side were likely to be in some strong sense “unbiased” is highly implausible. But if all testimony had been rejected on those grounds, the court would have had to rule in favor of keeping Terri fed and hydrated, as there could then not be clear and convincing evidence regarding her wishes.
Greer gives one more reason for rejecting Meyer’s testimony, a reason that leads us to an examination of his notably more credulous treatment of the evidence on the other side: He argues that testimony concerning the situations of other people was not relevant and did not express what Terri would want for herself (Greer 2000, p. 9; Greer 2005, p. 3).
As an abstract principle, this is fairly weak. One might infer from the fact that Terri evidently thought it wrong to remove Quinlan from a ventilator that she would a fortiori consider it wrong to remove someone’s nutrition and hydration—something that was not done to Quinlan. One might even plausibly infer from the fact that she was skeptical of other people’s ability to tell that Quinlan would have wanted her life support removed—indeed, that she was fairly passionate about the problems with such conjectures—that she would be unhappy about having a similar determination made for herself when she was unable to speak for herself.
But Greer may have been trying, in a feeble and selective fashion, to apply principles that courts had used in deciding not to treat particular types of evidence as clear and convincing. In particular, he may have had in mind the principle from New Jersey courts that “‘informally expressed reactions to other people’s medical condition and treatment’ do not constitute clear proof of a patient’s intent” (Jobes 1987, p. 443, quoting Conroy 1985, p. 366). The trouble with any such application, however, is that it would have had similar consequences for the statements made by Michael, Scott, and Joan Schiavo, since these also were “informally expressed reactions to other people’s medical condition and treatment.”
One might respond that Michael, Scott, and Joan Schiavo claimed, as Diane Meyer did not, that they heard Terri say something about what she would want for herself. But their evidence was beset by additional problems of credibility and relevance.
Terri’s guardian ad litem, Richard Pearse, drew attention to serious reasons to question Michael Schiavo’s credibility:
[Michael Schiavo’s] credibility is necessarily adversely affected by the obvious benefit to him of being the ward’s sole heir at law in the event of her death while still married to him. Her death also permits him to get on with his own life….Mr. Schiavo’s credibility is also adversely affected by the chronology of this case. For the first four years…following the ward’s accident, he aggressively pursued every manner of treatment and rehabilitation conceivable, as well as lawsuits to compensate the ward for her injuries in connection with which he presumably argued that she would require substantial funds for future care and treatment. At or around the time the litigation was finally concluded, he has a change of heart concerning future treatment….From that point forward, the ward’s husband has isolated her from her parents, has on at least one occasion refused to consent for the ward to be treated for an infection, and, ultimately, four years later, has filed the…petition for the withdrawal of life support on the basis of evidence…which could have been asserted at any time during the ward’s illness (Pearse 1998, p. 12).
Pearse made a bit clearer what he meant by Michael’s getting on with his own life earlier in the report. “Mr. Schiavo has admitted to at least two romantic involvements since the ward’s accident. It is apparent that he has reached a point where he has no hope of the ward’s recovery and wants to get on with his own life” (Pearse 1998, p. 6). In point of fact, Michael had at that time already been living with another woman for several years. He and she had two children while Terri was still alive and while Michael was still married to her and seeking her death by dehydration (Smith 2003).
Pearse’s statement about Michael is admirably clear. Greer’s response is weak. Greer casually implies equivalence between the two sides when it comes to conflict of interest:
The Guardian Ad Litem noted that Mr. Schiavo’s conflict of interest was that if Terri Schiavo died while he is still her husband, he would inherit her estate. The record before this court discloses that should Mr. and Mrs. Schindler prevail, their stated hope is that Mr. Schiavo would divorce their daughter, get on with his life, they would be appointed guardians of Terri Schiavo and become her heirs at law. They have even encouraged him to “get on with his life”. Therefore, neither side is exempt from finger pointing as to possible conflicts of interest in this case (Greer 2000, pp. 2-3).
This statement does nothing to address either Michael’s romantic conflict of interest (alluded to perhaps too delicately by Pearse as his desire to “get on with his own life”) or the questions raised by the chronology of the case and particularly by the suddenness of Michael’s change of heart after the settlement of the malpractice suit. Pearse had already addressed the notion that the Schindlers also had a conflict of interest:
[I]f the ward dies while married to Mr. Schiavo, he inherits the entire guardianship estate. On the other hand, if the marriage between the ward and her husband is dissolved the ward’s parents become her intestate heirs and they...will inherit the ward’s estate upon her death. Thus, Mr. Schiavo will realize a substantial and fairly immediate financial gain if his application for withdrawal of life support is granted....Of course, given the potential that the ward may have a normal life expectancy, there is no way to quantify the potential financial gain to the ward’s parents upon her eventual death because there is no reliable way of predicting how much of her estate will be left (Pearse 1998, p. 9).
Since Michael wanted measures taken that would cause Terri’s rapid death, whereupon he would be her heir, his conflict of interest is obvious. Since Terri’s parents wanted her kept alive, and since she could be expected to live for many years if their wishes were carried out, presumably whatever money was left from the malpractice award would be used to care for her indefinitely, so there was no reason to consider them to have a conflict of interest. Greer’s argument is specious and obviously the result of a desire to impugn Terri’s parents’ motives while not entirely disregarding Michael’s evidence. And even if Greer were right and both parties had a conflict of interest, this would not support admitting Michael’s evidence. It would simply mean that both Michael’s and Mrs. Schindler’s evidence should be discounted on the grounds of conflict of interest and that the decision must be made on the basis of evidence from witnesses against whom no such question could be raised.
At one point in his opinion Greer seems to imply that he is setting aside Michael’s evidence. “Michael Schiavo testified as to a few discussions he had with his wife concerning life support. The Guardian Ad Litem felt that this testimony standing alone would not rise to clear and convincing evidence of her intent. The court is not required to rule on this issue since it does have the benefit of the testimony of his brother and sister-in-law” (Greer 2000, p. 5). In fact, Pearse had indicated that Michael’s testimony was not credible and that he had conflicts of interest, giving Greer far more reason to discard his testimony altogether than Greer had for Diane Meyer. By the end of Greer’s court order, it becomes clear that he is relying, inter alia, on Michael’s evidence.
Statements which Terri Schiavo made which do support the relief sought by her surrogate (petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want to life [sic] like that also reflect her intention in this particular situation (Greer 2000, p. 9).
It is also worth noting that the statements Michael attributed to Terri did not clearly refer in any way to a feeding tube and that if she and Michael did watch such movies it is quite plausible that the people in the movies were on ventilators. On the other end of the spectrum, Michael Schiavo’s uncle was apparently not receiving any sort of artificial life support at all. No one wants to be a burden to others, and even if Terri did utter this conventional sentiment (“I wouldn’t want to be a burden”) this says little about her desires for or against specific forms of medical care for herself. The question before the court was supposed to be, specifically, whether there was clear and convincing evidence that Terri would want artificial nutrition and hydration withdrawn. Statements about a person on no life support of any kind are scarcely relevant to this determination.
Scott Schiavo’s testimony expressly refers to Terri’s reaction to a situation involving a woman on a ventilator—a ventilator, in fact, which dramatically lifted her off the bed at every breath. Even if we take Scott Schiavo’s testimony at face value, the words attributed to Terri—“If I ever go like that, just let me go…I don’t want to be kept alive on a machine”—most straightforwardly refer to the ventilator-dependent state of the grandmother just before her death, which the grandchildren were discussing at the funeral.
Joan Schiavo’s testimony runs afoul at the outset of the specifications regarding clear and convincing evidence made by the Florida court of appeals in 1989: “[T]he facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue” (Browning 1989, p. 273). Joan Schiavo was hardly remembering distinctly, nor was her testimony precise and explicit, particularly regarding the specific point at issue. She obviously was too ill-informed and remembered too vaguely even to know whether the man in the movie she and Terri had watched was on a feeding tube at all. She apparently did not even know what a feeding tube is and referred confusedly to a “feeding machine or a breathing machine” before admitting that she scarcely remembered the movie. Her statement about “wanting the tubes and everything taken out” is exceedingly vague.
Even more striking is the repeated use in Joan’s testimony of the plural pronoun “we.” What she is claiming to remember is agreement between herself and Terri about what both of them would want. This is particularly pertinent since the wishes in question were supposed to be Terri’s rather than Joan’s. Most of Joan’s testimony could be accounted for by a conversation in which Joan expressed strong opinions and Terri merely went along. Felos attempted to get Joan to recount what Terri said more specifically, but it took a good deal of prompting for Joan to make any claim about something Terri said independently, and the statements recounted then were weak—not wanting people to see her “like that,” not wanting to “go through that” or “live like that,” where “like that” was, again, on unspecified “machines.” But Judge Greer accepted the reliability and relevance of Joan’s testimony without a qualm:
Also the statements she made…to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that ever happened to her are likewise reflective of this intent (Greer 2000, p. 9).
He summed up his description of Michael’s, Scott’s, and Joan’s testimony by stating that it “rises to the level of clear and convincing evidence to this court” (Greer 2000, p. 9).
Besides Greer’s unjustified dismissal of Diane Meyer’s testimony and his credulous and uncritical acceptance of the Schiavo family’s testimony, one other aspect of his opinion in 2000 deserves special mention. Greer attempted to answer doubts about the Schiavos’ testimony by introducing information regarding opinions in society at large, a type of evidence that should have been debarred from the case. In his only attempt to take up the question of chronology, which Pearse had raised, Greer brusquely dismisses the delay in bringing forward this supposedly clear and convincing evidence:
The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt [sic] to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief. The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. “Hooked to a machine” means they do not want life artificially extended when there is not hope of improvement (Greer 2000, pp. 5-6)
Greer does not address in any way the points Pearse had raised regarding Michael, who initiated the entire legal process to seek Terri’s death only after obtaining a substantial malpractice settlement premised on the assumption of Terri’s continued life. Rather, Greer implies that the typical nature of the comments in question bolsters Scott’s and Joan’s testimony—and apparently Michael’s as well, since the comments about not wanting to be a burden were supposedly made to Michael. In other words, since the comments they attributed to Terri are typical of those of her age group and time, their testimony is even more believable than it would be otherwise.
But in a court trial of this sort such sociological data have no place. To understand why, consider a parallel in a criminal trial: No one would consider it legitimate to bring forward data on how frequently young black males living in a particular neighborhood commit a certain type of crime to bolster the prosecution’s case against a specific young black defendant. In the type of case before Greer, the specific legal requirement was to discover Terri’s own wishes by clear and convincing evidence. To buttress witnesses’ evidence about Terri’s statements by sociological data about what other people of about the same age would say or wish should thus be wholly out of court. Indeed, it appears to contravene a specific clause in the Browning decision:
One does not exercise another’s right of self-determination or fulfill that person’s right of privacy by making a decision which the state, the family, or public opinion would prefer. The surrogate decisionmaker must be confident that he or she can and is voicing the patient’s decision (Browning 1989, p. 269).
In sum, Greer’s opinion is disgracefully careless and biased. He rules out relevant testimony on the basis of a factual error of his own and refuses to reinstate the data when the error is pointed out. He allows and relies on testimony from a source with documented conflicts of interest. He relies heavily on evidence of casual statements that concern situations importantly different from Terri’s and that have no clear relevance to feeding and hydration. He uses evidence that is inexplicit and poorly remembered and in which it is unclear to what extent Terri clearly voiced her own opinion. And instead of “erring on the side of life” in such an obvious case of doubt, as the relevant controlling law requires, he papers over the weakness of the testimony on which he wants to rely by reference to sociological data which have no place in the determination of Terri’s individual statements and wishes. Snead (2006, p. 18) comments, “That such evidence would be regarded as ‘clear and convincing’ is nothing short of astonishing.” Elizabeth Foley (2005) makes the same point:
Greer’s conclusion that the evidence was ‘’clear and convincing’’ is shocking. As a law professor who specializes in bioethics, I am amazed at how little evidence there is regarding what Schiavo would want under her present circumstances.
Schiavo was a healthy 27-year-old at the time she suffered cardiac arrest and lost consciousness. …She made very few oral statements regarding her attitude toward artificial life support. None of her statements was made in a particularly serious context or elaborated upon with any detail. None of her statements addressed the specific issue of receiving food or water. Under facts such as these, a court would ordinarily conclude that the evidence is hopelessly in equipoise -- the classic ‘’six one way, half a dozen the other’’ situation.
In such situations, the evidence cannot provide clear and convincing proof that the individual would want to discontinue treatment. As such, Florida law dictates that we err on the side of life.
This conclusion alone is enough to refute the suggestion that Greer was merely following the law when he ordered Terri’s death. But we cannot quite stop there. For the appellate court supported him, and their support was also necessary for Terri’s death. This support is, if possible, even more mysterious than Greer’s shoddy reasoning. As Snead (2006, pp. 7ff) points out, the whole point of the law in Florida is supposed to be the effectuation of the individual’s own wishes. That point is emphasized again and again in the relevant legal opinions. But for that purpose of patient autonomy to be fulfilled with any reliability at all, it is crucial that there be strong evidence about the patient’s wishes—hence, the retention of the clear and convincing standard of evidence, which the appellate court could have concluded was not satisfied in Terri’s case.
The appellate court accepted Greer’s conclusion regarding the strength of the testimony with little comment. This is what they say about Tyler’s evidence:
Ms. Tyler has studied American values, opinions, and attitudes about the decision to discontinue life-support systems. As a result, she has some special expertise concerning the words and expressions that Americans often use in discussing these difficult issues. She also has knowledge about trends within American attitudes on this subject.
We have considerable doubt that Ms. Tyler’s testimony provided much in the way of relevant evidence. She testified about some social science surveys. Apparently most people, even those who favor initial life-supporting medical treatment, indicate that they would not wish this treatment to continue indefinitely once their medical condition presented no reasonable basis for a cure. There is some risk that a trial judge could rely upon this type of survey evidence to make a “best interests” decision for the ward. In this case, however, we are convinced that the trial judge did not give undue weight to this evidence and that the court made a proper surrogate decision rather than a best interests decision (Schiavo 2001, p. 179).
To say that this response willfully misses the point would be to put the matter mildly. The problem with Tyler’s testimony is that her evidence concerning attitudes common among young people at the time was used to bolster the content of the Schiavos’ testimony when the trial court was supposed to be making a highly specific determination about what Terri herself had said and would wish.
And here are the court’s comments on the testimony itself:
Finally, the Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court’s decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence (Schiavo 2001, p. 179).
Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her (Schiavo 2001, p. 180).
It is possible that the Schindler’s lawyer made no further attempt to point out the deficiencies of the testimony in question than to say that it was “conflicting.” But this peremptory treatment of the sufficiency of that evidence is fairly striking, especially considering that the court concludes on the same page, “After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.” Contrast this court’s consideration of the evidence, completely lacking in details, with the detailed discussion of the evidence in a similar case by the Michigan Supreme Court, which took many pages and resulted in their overturning the trial court’s decision to authorize removal of food and water (Martin 1995, pp. 208ff, 229ff). If “due consideration” took place in the Florida appellate court on Terri’s case, they hid it effectively.
Some explanation of the court’s briskness may be found in the repeated and seemingly irrelevant references in the opinion to the indignity of Terri’s life. There is, for example, this odd intrusion of a detail that bears no obvious relation to its context:
Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening (Schiavo 2001, p. 177).
What is the purpose of the sentence about diapers? Perhaps the following passage gives some clue:
Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years (Schiavo 2001, p. 177).
The reference to a miracle comes up once more, with an even heavier intonation of sarcasm, in a telling location and in a telling passage. It comes directly after the statement quoted above that Judge Greer had a “sufficient basis” for his decision and directly precedes the statement that the appellate court has concluded “after due consideration” that Greer had clear and convincing evidence:
In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did (Schiavo 2001, p. 179).
In other words, “Who would want to live on and on like that? Of course she would want her feeding tube removed.” And this, ironically, appears in a passage that purports to defend her right to make the decision for herself. Judge Greer himself makes a better show of considering the actual evidence concerning Terri’s wishes. His bias comes out in his handling of that evidence, but in what he writes he is more cautious than the appellate court about flaunting his own judgment of the value of Terri’s life.
To make things more astonishing, this opinion in the Schiavo case was written by none other than Judge Chris Altenbernd, the very judge who wrote the 1989 appellate Browning opinion, complete with its explanations of the clear and convincing evidence standard and its injunction to err on the side of life in doubtful cases.
To understand how this is possible, we need to go back for a moment to the situation in the Browning case. Estelle Browning had executed a written living will, using a pre-printed form, on which she had checked a box indicating that she did not wish to receive artificial nutrition and hydration. She had been quite concerned prior to her stroke to make sure that her living will was legally in effect. However, the checked box followed an introductory statement that the following measures should not be taken if the patient’s condition were “terminal” and if death were “imminent.” The words “terminal” and “imminent” had to be interpreted by the appellate court in accordance with written, statutory law, and given the state of statutory law at the time, this qualification apparently meant that her nutrition and hydration could not be withdrawn on the appellate court’s own order. The appellate court was disturbed by this fact, and Altenbernd’s opinion is written in the clear expectation that the Supreme Court, armed with the power to apply state constitutional measures rather than merely statutory measures to the question, will be able to get around this difficulty.8
And he was right. The Supreme Court was applying a supposed “constitutional right” to the case, and therefore they did not have to interpret “terminal” and “imminent” in accordance with written statute but rather with what they concluded was Mrs. Browning’s intent. They summarily declared that her intent was that her condition was “terminal” and her death “imminent” if she would die soon after the removal of nutrition and hydration (Browning 1990, p. 17). They did not bother to explain the basis for this somewhat creative interpretation, but one may infer from statements in both the appellate and the Supreme Court decisions that they based it on the fact that the living will was a pre-written form (and so Mrs. Browning may not have realized that her request not to have artificial nutrition and hydration might be limited by the language preceding the checked box) and on the fact that Mrs. Browning had once said to a friend that she was glad she wouldn’t have to live on in a nursing home because her living will had “taken care of that” (Browning 1989, p. 272; Browning 1990, p. 8). Altenbernd apparently realized quite well that his “clear and convincing” evidence standard and his injunction to “err on the side of life” in cases of doubt need not prevent the removal of Mrs. Browning’s feeding tube, given the existence of her written living will. The only way in which the matter did not work out quite according to plan was that Mrs. Browning actually died of natural causes, her nutrition and hydration still in place, before the case was heard by the Supreme Court, an outcome Altenbernd had implied that he hoped would not happen. The Supreme Court heard the case after her death in order to set a precedent.
This history and the fairly blatant bias of the appellate court’s opinion in Terri’s case supports a disturbing conclusion: The court did not really mean it when it implied in Browning that great care must be taken in discerning the patient’s own wishes, especially if that care would actually prevent a patient living a supposedly undignified life from being dehydrated to death. The evidential standards were meant to be circumvented, and the court stood ready to aid and abet a trial judge who disregarded the ordinary, textual meaning of the controlling law regarding the evidential standards to be used.
Nor is this the only case in which one can infer something similar regarding a court’s motivation. In a fascinating and useful section of his paper, Snead (2006, pp. 12-14) summarizes many statements about clear and convincing evidence made by courts in states other than Florida and argues convincingly that Greer’s notion of clear and convincing evidence was seriously defective when compared to the definitions and examples used by courts around the country. But it is disturbing to find that in one of these cases the patient was dehydrated to death despite the admitted fact that clear and convincing evidence did not exist regarding her wishes. In the Jobes case, the New Jersey Supreme Court made a number of sensible and strong statements about the nature of clear and convincing evidence (Jobes 1987, pp. 407-8, 412), concluded that such evidence did not exist regarding Mrs. Jobes’s wishes, and then declared that such evidence was not necessary and that she could be dehydrated to death (and the medical facility ordered to participate in that dehydration) on the basis of a lesser standard—based, in fact, only on her family’s own opinions about her wishes (Jobes 1987, pp. 412, 438). In so doing they were following their own precedent in Conroy.9 These cases present particularly glaring examples of the fact that courts may talk impressively about high standards of evidence regarding a patient’s wishes while remaining determined that such standards not be allowed actually to prevent a patient’s death by dehydration, which the judges consider almost automatically to be an assertion of the patient’s freedom and autonomy.
The assumption that it is an offense against a patient to continue to provide artificial nutrition and hydration comes out in Judge Altenbernd’s appeal for prompt decision-making lest a patient die while still receiving care. “Third, it is important that the decision be prompt. The list of cases in which courts ‘grant’ a right of privacy only after the patient has expired, grows longer every day” (Browning 1989, p. 269). Altenbernd shows the same bias when he says, “[W]e would not fulfill our constitutional responsibilities if we allowed Mrs. Browning to become yet another citizen who received her constitutional right of privacy posthumously” (Browning 1989, p. 274). In other words, the right to be murdered is of no use to someone who is already dead.
Nor should this attitude be surprising, given that the supposed right courts find in various state constitutions, in the federal Constitution, or in common law is a right to refuse nutrition and hydration. The provision of nutrition and hydration is the putative offense against the patient’s rights. There are notable exceptions to the tendency of courts to find some way or other to justify the patient’s dehydration, such as the Martin case already mentioned and the O’Connor case in New York. But sociologically, the context and history of such cases makes it no great surprise when, legal injunctions to the contrary notwithstanding, courts err on the side of death.
What does all of this mean about Judge Greer? Not, certainly, that he was merely following the law in sentencing Terri to death. Had he followed the law, Terri Schiavo would in all probability be alive today. But significant blame must also fall upon those higher court judges, like Judge Altenbernd and the justices of the Florida Supreme Court, who make the law a mere instrument of convenience for the destruction of the helpless.10
Browning. (1989) In Re. Guardianship of Browning, 543 So. 2d 258, Fl. Dist. Ct. App. (1989).
Browning. (1990) In Re. Guardianship of Browning, 568 So. 2d 4, Florida (1990).
Conroy. (1985) In re. Conroy, 98 NJ 321, New Jersey (1985).
Foley, Elizabeth Price. (2005) “The Florida Legislature Can Get it Right This time,” Miami Herald. Mar. 4, 2005. Accessed Feb. 9, 2009. <
Gettleman, Jeffrey. (2003) “He’d Do It Again, Says ‘Ten Commandments Judge’,” The New York Times. Nov. 13, 2003. Accessed Jan. 29, 2009. <>
Greer, George. (2000) In Re. Guardianship of Schiavo. Abstract Appeal. Accessed Feb. 12, 2009. <http://abstractappeal.com/schiavo/trialctorder02-00.pdf>
Greer, George. (2005) In Re. Guardianship of Schiavo. Abstract Appeal. Accessed Feb. 13, 2009. <>
Jobes. (1987) In re. Jobes, 529 A.2d 434, New Jersey (1987).
Karp, David. (2005) “Memories Diverge on What Terri Wanted,” St. Petersburg Times. Mar. 24, 2005. Accessed Jan. 31, 2009. <http://www.sptimes.com/2005/03/24/Tampabay/Memories_diverge_on_w.shtml>
Martin. (1995) In re. Martin, 538 N.W. 2d 399, Michigan (1995).
Miller, Robert T. (2005) “The Legal Death of Terri Schiavo,” First Things. Accessed Feb. 16, 2009. <http://www.firstthings.com/article.php3?id_article=191>
Pearse, Richard. (1998) In Re. Guardianship of Schiavo, An Incapacitated Person. Report of Guardian Ad Litem. Hospice Patients.Org. Accessed Feb. 12, 2009. <http://www.hospicepatients.org/richard-pearse-jr-12-29-98-report-of-guardianadlitem-re-terri-schiavo.pdf>
Schiavo. (2001) In re. Guardianship of Theresa Marie Schiavo, 780 So. 2d 176, Fl. Dist. Ct. App. (2001).
Smith, Wesley J. (2003) “Life, Death, and Silence,” The Weekly Standard. Oct. 31, 2003. Accessed Feb. 4, 2009. <>
Snead, O. Carter. (2006) “The (Surprising) Truth About Terri Schiavo: A Defeat for the Cause of Autonomy,” Notre Dame Law School Legal Studies Research Paper No. 06-05. Social Science Research Network. Accessed Feb. 12, 2009. <>
Testimony at Trial: Diane Meyer. (2000) In Re. Guardianship of Schiavo. Trial Transcript. Accessed Feb. 16, 2009. <>
Testimony at Trial: Joan Schiavo. (2000) In Re. Guardianship of Schiavo. Trial Transcript. Accessed Feb. 18, 2009. <http://www.lydiamcgrew.com/JoanSchiavoTestimony.pdf>
1As I am using the term ‘law’ for purposes of this article, the term covers both statutory laws and controlling higher-court precedents. I do not actually admit that higher-court precedents should be regarded as laws; I am inclined to think that calling them so and treating them so confuses the issue of judicial overreach. However, both lawyers and, more importantly for this article, judges, do so regard them and do consider themselves bound by such precedents as strongly as, or even more strongly than, by statutory law. So for purposes of discussing whether Judge Greer was merely following the law as he understood it, it is most convenient to include relevant precedents under the heading of ‘law’.
2 Though not pertinent to my main thesis here, it is an interesting side-note that Florida state law permits death by deliberate dehydration for legally incompetent people who are not diagnosed as being in a persistent vegetative state as well as for those who are. The perception during Terri’s case that she could not be dehydrated to death if the PVS diagnosis were disproven thus appears to have been incorrect. The Browning decision is explicit on this point, since earlier precedents had already established such a “right” for PVS patients. Hence, the Browning decision was breaking new ground by extending the same “right” to other incompetent patients (Browning 1989, p. 267).
3 Quotations from witness testimony in the article by David Karp from the St. Petersburg Times appear to be based on notes taken by a reporter for the paper who was present at the 2000 trial.
4 Snead’s article is comprehensive and excellent. It should be required reading for anyone interested in the legal aspects of the Schiavo case.
5 Scott’s testimony indicates that Terri had not actually seen his grandmother but had come for the funeral, after which a general discussion took place at a meal. The relatives were all expressing disapproval of her medical treatment at the end of her life, and it was in this context that, Scott said, Terri made this comment.
6 This is not always so, however, and particularly not in these types of cases. For example, the Michigan Supreme Court overturned a lower court’s determination in the Martin case regarding a patient’s wishes, deciding for itself, by a direct examination of the evidence, that the evidence in question was not clear and convincing that the patient would have declined nutrition and hydration in his present state. And even the Florida court of appeals stated regarding the evidence in Terri’s case that it was clear and convincing (Schiavo 2001, p. 180), indicating an opinion of its own. So it is not true that appellate courts in these cases merely defer to the trial court and refuse to examine and evaluate the evidence for themselves.
7 Statements made when a patient is a minor would not normally be taken as indicative of the patient’s wishes as an adult.
8 See, for example Browning (1989, p. 266): “[W]e find that a constitutional remedy must exist to fulfill Mrs. Browning’s right of privacy,” and the appellate court’s referring the question to the Supreme Court at p. 274.
9 Claire Conroy had already died by the time the NJ Supreme Court heard the case. She had made no statements about her wishes concerning medical treatment or nutrition and hydration. The court discussed various standards that could be used to determine that artificial nutrition and hydration could be withdrawn from people in her situation and expressly refused to limit the removal of nutrition and hydration to cases where there is actual evidence of the patient’s own wishes: “We hesitate, however, to foreclose the possibility of humane actions, which may involve termination of life-sustaining treatment, for persons who never clearly expressed their desires about life-sustaining treatment but who are now suffering a prolonged and painful death.” The court went on to articulate variants on the “best interests” standard that would allow such a “humane” action when evidence about the patient’s own wishes is lacking (Conroy 1985, pp. 364-5). This is particularly ironic given that when the court does discuss evidence of the patient’s wishes it states that “the right that we are seeking to effectuate is a very personal right to control one’s own life” (Conroy 1985, p. 360).
10 My thanks to Robert Schindler, Sr., for sending me a copy of Snead’s article, which I had not previously read, to Jonathan Prejean for help with legal research and for an explanation of the concept of persuasive authority, to Tim McGrew for numerous helpful comments and suggestions, to Patricia Anderson for a copy of the transcript of Diane Meyer’s trial testimony, and to Joseph Bell for a copy of the entire witness trial testimony with a searchable text layer.