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END OF LIFE LEGISLATION: Public Policy Recommendations
Provided by National Center for Life and Liberty

In the 1960s, when state court judges refused to protect the rights of minorities within their state court systems, the federal government stepped in to make certain that a fair trial could be had in federal court.  That is exactly what the United States Congress tried unsuccessfully to do in Terri Schiavo’s situation when it enacted special legislation on Easter Sunday, 2005, to permit Terri’s case to be reheard in federal court.  The purpose of this federal legislation was to make sure the state court decision to put Terri to death by starvation and dehydration was correct. 


Unlike the 1960s, however, the federal courts in Florida’s Eleventh Judicial Circuit refused to rehear the case and the judge determined that a federal court could not review a death order by a civil court, despite the fact that federal court reviews of criminal court execution orders are routine.  The federal courts also determined that none of Terri Schiavo’s federal or state constitutional rights had been violated.  Terri had fewer legal protections in Florida state and federal courts than laboratory rats or mass murderers would have.  Therefore, the National Center for Life believes that all state legislatures should enact the following public policy considerations to prevent future termination of the lives of the elderly, disabled, brain damaged and infirm.

 

1. Requirement for a writing before a court-ordered death. 

At the very least, no civil court should be permitted to order an innocent person to die, particularly by the barbaric means of starvation and dehydration, something that would be illegal for a pet or a death row criminal, without first having a legally sufficient statement such as a written living will or advance health care direction in writing, with signatures and witnesses appropriate to those required for any other legal document.  Without written documents, public policy should always err on the side of life, especially when family members disagree.

State legislatures are very capable of enacting laws that require a desire to terminate one’s life by the removal of a feeding tube to be stated in writing.  Oral testimony, particularly by those who could benefit from the outcome, should not be permitted.

 

2. State legislatures should not permit the taking of a life merely because the patient is diagnosed as being in a persistent vegetative state (pvs). 

The category of pvs (persistent vegetative state) should not legislatively define which disabled people may live and which may be killed by a court order, particularly when their condition is not otherwise terminal.  PVS is misdiagnosed nearly 40% of the time, condemning to death even those people who may have a hope of recovery. 

Leading neurologists acknowledge that the brain is far more sophisticated than scientists originally thought.  New scientific evidence indicates that the brain can actually reroute communication and other functions when damaged.  Furthermore, as technology advances, neurologists are determining that pvs is too general a category.  Medical experts have now found that there are many more levels of consciousness, including a minimally conscious state (mcs), that offer varying improved prognoses for recovery.  As Terri Schiavo’s case was unfolding in the Florida courts, in other states where death is not so easy an option, patients who had been diagnosed as being in pvs began to recover, even decades later. At a minimum, state laws should not equate pvs with terminal illnesses when making life and death decisions regarding medical treatment.  New laws must recognize new technologies and new diagnoses and should never enact laws that make a pvs diagnosis a death sentence.

 

3. Guardianship law should recognize a lack of spousal commitment.

A spouse who has moved on and begun another committed relationship should not automatically be permitted to continue serving as a guardian for the other spouse, particularly with regard to making life and death decisions.  In the Terri Schiavo case, Terri’s husband, Michael, had set up a new home with another woman with whom he had two children over a ten-year period.  Michael and Terri had been married for only five years before her collapse.  When a spouse has moved on in this manner, lawmakers should recognize the potential for a conflict of interest and should provide some legislative mechanism to remove that spouse’s automatic preferential status as the guardian and sole legal decision maker. 

Several states already have laws that provide for the removal of a guardian in the event that a spouse cohabits with another person.  If that law had been in effect in Florida, the court would have been required to remove Michael as Terri’s guardian and she might still be alive today, receiving treatment and possibly improving.  It is better public policy for a spouse, cohabiting with another person or beginning a new family with another person, as Michael was doing, to be removed as the guardian, particularly when a final decision that will result in death is at issue.