Til death do us part.

The law, lawyers, and the court.
Oct. 23 2003 6:29 PM

Till Death Do Us Part

Why spouses get the final say in coma cases.

Terri Schiavo and her mother, Mary Schindler
Terri Schiavo and her mother, Mary Schindler

It's a story too sad for Jerry Springer. A coma patient's family feuding with her spouse; a million-dollar malpractice settlement flushed away on attorney's fees; lawyers acting as media specialists; a girlfriend; a love child; and Jeb Bush.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The battle over Terri Schiavo's life and death has gone thermonuclear. Days after Gov. Bush ordered her feeding to tube be reinserted over the wishes of her husband and the findings of the courts, her family's misery has become a national spectacle. Everything about the case is shocking. The media manipulation by Schiavo's family and attorneys, the abuse allegations against her husband—who may or may not have misspent a million-dollar malpractice settlement and who appears rather creepily eager to trade in his wife for his pregnant girlfriend and their child; and the hubris of Florida Gov. Bush and the Republican Legislature.

Advertisement

One needn't take a position on the right-to-life/right-to-die controversy to be appalled by the events in Florida. Whether one believes that Terri Schiavo is in a "persistent vegetative state" or a "minimally conscious state" is immaterial. Whether one believes that her blinks and smiles are signs of cognition or automated reflexes is similarly not the issue. All that matters is that these disputes are governed by law, that the law says Michael Schiavo is her legal guardian, and that his decision ought to have been final.

Since 1990, when the Supreme Court decided Cruzan v. Missouri Department of Health, there has been a constitutionally protected right to decline unwanted medical procedures. How does the Florida Legislature justify overriding that decision and its own Constitution—which guarantees a right to privacy and allows residents or their legal guardians to terminate life support—by enacting a "law" that expressly violates that right? And how dare Jeb Bush call for the appointment of a new guardian for Schiavo? The courts have already named one—her husband.

Take away all the high-minded rhetoric in this case and it is no different than any child custody case. There are a number of people seeking to assert control—all of whom have a legitimate and passionate interest in the outcome. But that doesn't mean they all get a vote. This is why the courts have wisely limited guardianship to just one decision-maker—Schiavo's spouse. The decision to terminate a life is not a popular referendum. Nor is it subject to a recount. The Florida Legislature should understand that better than anyone.

The decision to end the life of someone in a persistent vegetative condition is always excruciating, and never more so than when that patient has not left a living will or shared her preferences. Judges describe these cases as among the most harrowing they hear. But over the same decades that technology has enabled us to sustain life artificially, the courts have achieved a consensus of sorts on how best to decide when to pull the plug: These decisions are best made by just one individual—carefully selected from everyone with an interest in the case—who acts as a "surrogate decision-maker." That surrogate usually has one charge—to determine what the patient would have wanted. After Cruzan it's very clear that what the patient would have wanted is more compelling than how the family or husband would have voted. The surrogate may certainly take the family's recollections into account when attempting to re-create this decision, but there is no general legal obligation that binds her to respect those preferences. Why? For the same reason courts don't divide child custody authority among 17 interested aunts, cousins, and grandparents. Because where a life is at stake it's better to have consistency and finality than contentiousness and chaos.

Call it the Solomon rule. Better one certain guardian than a life of unremitting, unresolvable conflict.

Ironically, the very reason courts respect the judgment of a surrogate (or a primary custodian in divorce cases) is so that the courts themselves—who do not know the patient (or child)—are relieved of the burden of making fact-specific decisions. Courts don't want to decide on feeding tubes any more than they want to pick a child's elementary school. The courts, in short, try to stay out of it; a fact the Florida Legislature failed to appreciate. The upside of this approach—in both custody and end-of-life cases—is finality and certainty.

The downside: How to determine who gets to be the decision-maker?

Well, the law has spoken on this issue as well. And in general, the spouse is granted preference over family members. Why? For the same reason most states give spouses the decision over how to dispose of the body of the deceased, and for the same reason states allow spouses to inherit first. Because the difference between your parents and your spouse is that you chose the latter to care for you and to care for in return. As a consequence of that choice the law assumes that your spouse knows you intimately and shares with you a sphere of legal privacy into which even your parents and siblings may not intrude. Do some of us choose badly? Certainly. But is it still a generally sound legal presumption that your mate knows you best? Yes.

This isn't to say that spouses may execute their partners at will. Or that one's spouse is one's property, any more than one's child is one's property. But in death, as in life, the courts must ultimately grant some decision-making powers to someone. It is a mistake to view these end-of-life cases as analogous to death penalty cases. The only issue on the table is who best knows what you'd have wanted for yourself. The courts must conduct a thorough inquiry to that end—is this guardian fit? Is he in fact expressing the patient's wishes for herself? Is her medical condition indeed irreversible? In this case, the courts have done all this. Medical experts have spoken. Michael Schiavo was not given this decision cavalierly. It was given him as his wife's partner and caretaker, someone she took until death do us part.

The courts have not found that Michael Schiavo is unfit to act as his wife's guardian, only the Florida Legislature did that. But in a more profound way, Terri Schiavo decided this case the day she married him. Until and unless a court finds him unfit, it is vital that we respect that.