Schiavo case: Law doesn’t lean to life, and it should

WASHINGTON – If I were in Terri Schiavo’s condition, I would not want a feeding tube. But Terri Schiavo does not have the means to make her intentions known. We do not know what she would have wanted. We have nothing to go on. No living will, no advance directives, no durable power of attorney.

What do you do when you have nothing to go on? You try to intuit her will, using loved ones as surrogates.

In this case, the loved ones disagree. The husband wants Terri to die; the parents do not. The Florida court gave the surrogacy to her husband, under the generally useful rule that your spouse is the most reliable diviner of your wishes: You pick your spouse and not your parents, and you have spent most of your recent years with your spouse and not your parents.

The problem is that although your spouse likely knows you best, there is no guarantee he will not confuse his wishes with yours. Terri’s spouse presents complications. He has a girlfriend, and has two kids with her. He clearly wants to marry again. And a living Terri stands in the way.

Now, all of this may be irrelevant in his mind. He may actually be acting entirely based on his understanding of his wife’s wishes. And as she left nothing behind, the courts have been forced to conclude based on his testimony that she would prefer to be dead.

That is why this is a terrible case. The general rule of spousal supremacy leads you here to a thoroughly repulsive conclusion.

Repulsive because in a case where there is no consensus among the loved ones, one’s natural human sympathies suggest giving custody to the party committed to her staying alive and pledging to carry the burden themselves.

Let’s be clear about her condition. She is not dead. If she were brain-dead, we would be talking about harvesting her organs. She is a living, breathing human being. Some people have called her a vegetable. Apart from the term being disgusting, how do they know? How can we be sure of the complete absence of any consciousness, any awareness, any anything “inside” this person?

The crucial issue in deciding whether or not one would want to intervene to keep her alive is whether there is, as one bioethicist put it to me, “anyone home.” Her parents, who see her often, believe that there is. The husband maintains there is no one home. (But then again he has another home, making his judgment somewhat suspect.)

The husband has not allowed a lot of medical testing in the last few years. I have tried to find out what her neurological condition actually is. But the evidence is sketchy, old and conflicting. The Florida court found that most of her cerebral cortex is gone. But “most” does not mean all. There might be some cortex functioning. The very severely retarded or brain-damaged can have some consciousness. And we do not go around euthanizing the minimally conscious in the back wards of the mental hospitals on the grounds that their lives are not worth living.

Given our lack of certainty, given that there are loved ones prepared to keep her alive and care for her, how can you allow the husband to end her life on his say-so?

Because following the generally sensible rules of Florida custody laws, conducted with due diligence and great care over many years in this case, this is where the law led.

For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law.

But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.

There is no good outcome to this case. Except perhaps if Florida and the other states were to amend their laws and resolve conflicts among loved ones differently – by granting authority not necessarily to the spouse but to whatever first-degree relative (even if in the minority) chooses life and is committed to support it. Call it Terri’s law. It will help prevent us having to choose in the future between travesty and tragedy.

Charles Krauthammer is a Washington Post columnist. Contact him by writing to letters@charleskrauthammer.com.