Friday, March 31, 2006

One Year Ago Today...

Terri Schiavo, an innocent woman, died as a result of a judge's order permitting her husband to starve and dehydrate her to death.

In commemoration of her death, I am running on my blog today my Catholic World Report article from May 2005, titled "The Death of Terri Schiavo. This is the first time this article has appeared online. I hope, in reading it, that you will be reminded of how such a grave injustice was done, and the half-truths, deceptions, and outright lies that accompnied and justified it.

The Death of Terri Schiavo - Part One

This article first appeared, in slightly different form, in the May 2005 issue of Catholic World Report. Due to the size of the article, it is continued in a second post below.

If the courts had reconsidered the facts, if doctors had followed procedures, if reporters had asked obvious questions, if bishops had spoken out boldly - a gross injustice migfht have been averted.

On March 31, shortly after 9:00 AM, Terri Schindler-Schiavo died, as the nation, and even the world, watched. She died in the hospice bed to which she had been confined for over five years. Her death has been hailed as a victory for the "right-to-die" movement, and denounced by others as "judicial homicide".

As she lay dying, the media kept a grim countdown of the number of days she had been without food and water, and pundits opined on the cable news shows and in the newspapers about "death with dignity" versus the sanctity of life. Her death, and the circumstances surrounding it, was one commented upon more widely than most in modern history, and yet also probably one of the most misunderstood.

Terri's feeding tube was removed, as Florida Circuit Court Judge George Greer ordered, on March 18, shortly after 2:00 PM. Terri's family - her parents Bob & Mary, and her brother and sister Bobby and Suzanne - had been with Terri for most of the day. Terri had received her last feeding at about 11:00 AM. The Schindlers were told, by the police officers who maintained constant guard outside Terri's room, that they would have to leave. At this point, medical personnel removed the percutaneous gastrostomy (PEG) tube which had been providing Terri's nutrition and hydration for some 15 years. From that moment on, Terri would receive no water or food, and thus began the "dying process" which would end 13 days later.

For the first few days, Terri appeared more or less "normal". She continued to interact with her family, and appeared alert. But after 3 or 4 days, the change in her condition became noticeable: Her skin started to appear dry and lifeless, and she became less responsive. By the seventh day, the Schindlers were telling me, in our daily telephone conversations, that Terri had become "lethargic", and within a few more days, almost entirely unresponsive. Sometime around day 10 or 11 Terri suffered renal failure, which led swiftly to, and was the immediate cause of, her death.

The Last Legal Battles

In the weeks prior to the removal of Terri's feeding tube, and even while Terri lay dying, the Schindlers waged a legal battle to keep Terri alive. On February 25, Judge Greer ordered that Terri's feeding tube was to be removed three weeks hence. He also ruled that he would not hear any further motions or petitions from the Schindlers, except as they related to Terri's "dying process" and her final disposition. As the Associated Press reported:
The judge wrote that he was no longer comfortable granting delays in the family feud, which has been going on for nearly seven years and has been waged in every level of Florida's court system. He said the case must end.

"The court is no longer comfortable granting stays simply upon the filings of new motions," Greer wrote. "There will always be 'new' issues."

The Schindlers, in spite of Judge Greer's decision to refuse new motions, nonetheless filed several in the week following Judge Greer's setting of a new death date. Among these were petitions for new medical evaluations of Terri, a petition to allow Terri and Michael to be divorced, and a request to remove Michael as guardian.

Initially, Judge Greer held to his stated intent and dismissed these motions without hearing their merits. However, when threatened with the prospect of a successful appeal by the Schindlers on due-process grounds, Judge Greer relented and allowed most of the Schindlers' motions to be heard and argued. In the end, though, the hearings made no difference in the outcome of Judge Greer's decisions. During the week of March 7, Judge Greer:
Denied the Schindlers' motion to compel Michael Schiavo's deposition in their case challenging his guardianship.

Denied the Schindlers' motion for a divorce of Terri from Michael. The motion was denied on "Catch-22" grounds: Under the law, only spouses can request a divorce from each other. Since Terri could not speak for herself, she could not request a divorce. Only Michael, as guardian, could make such a request on Terri's behalf. Needless to say, Michael chose not to.

Then Judge Greer:
Denied the Schindlers' motion to remove Michael as guardian.

Denied the Schindlers' motion that attempts be made to feed Terri by mouth once the feeding tube was removed March 18. George Felos, the attorney for Michael Schiavo, argued against this motion by asserting that if Terri was fed by mouth, she might aspirate the food and die an "extended, gruesome death". This line of reasoning struck many as bizarre, given that Felos was seeking Terri's death via starvation and dehydration over the course of a week to ten days.

Judge Greer also denied the Schindlers' request that Terri be allowed to receive Viaticum (Holy Communion for the dying) by mouth. He ruled that if Terri was to be given Communion, it had to be done via her feeding tube.

He denied the Schindlers' motion to allow their daughter to die at their home, noting the parents could visit the Pinellas Park hospice where she lives.

Judge Greer denied the Schindlers request to have Terri's intact body interred: He confirmed Michael's order that Terri was to be cremated upon her death. He also denied the Schindlers motion to allow Terri to be buried in Florida. Michael intends to inter her cremated remains in Pennsylvania, where they are both from.

Judge Greer's ruling against the Schindlers on the matter of feeding by mouth seemed the most indicative of his frame of mind: By precluding attempts, as a "last ditch" measure, to feed her by mouth, the Judge showed that his object was not merely to stop what he might (erroneously) argue is an "extraordinary" means of support, but to make certain that Terri died. One might make an analogy to someone on a respirator: frequently respirators are removed from patients, but sometimes they continue to breathe on their own without support. It is as though a judge were to order not only that a respirator be removed, but that the patient's mouth and nose be sealed with duct tape, just to make sure he can't get any air by any means.

Turning to Lawmakers

Following an unsuccessful round of appeals in the Florida and Federal appellate courts, the Schindlers' efforts turned to obtaining legislative relief. The Schindlers lobbied the Florida legislature to pass a new version of "Terri's Law", which had been struck down as unconstitutional by the Florida Supreme Court. But while the Florida bill seemed to stall, the Schindlers made more progress in the U.S. Congress, where measures intended to grant a new review of Terri's case had been introduced in the House and Senate. The measure introduced in the House, the Incapacitated Persons Protection Act, was a broadly written bill that would have given the right to a Federal hearing to a whole class of persons facing death by removal of nutrition and hydration. The Senate bill was more narrowly construed, providing relief to the Schindlers alone.

Americans were treated to a topsy-turvy public debate in which each side seemed at times to argue according to principles historically embraced by their opponents. Republicans such as House Majority Leader Tom De Lay decried the unaccountability and activism of our courts, while at the same time arguing for the passage of a bill which would bring Terri's case back before those same courts. Democrats, who have in the past defended intervention by Federal courts in matters of state policy, found themselves arguing for State's rights, holding the decisions of the Florida courts sacrosanct.

The debate over the bills went on past the removal of Terri's feeding tube, and indeed, it seemed at points that no measure would be passed. Bobby Schindler went to Washington to lobby for the bills in the House and Senate, and met with every single member of both houses. Congressional sources described Bobby as "very persuasive" in his meetings with legislators. In one meeting, as he laid out the details of Terri's case, audible gasps were heard several times as the members were told of the string of injustices and errors which led to her judicially-ordered starvation.

In spite of the Republican support and Bobby's persuasiveness, there was formidable opposition to passing a law to save Terri. The ringleader of the opposition to the Senate bill, according to Bobby, was none other than Senator Ted Kennedy, the senior Catholic senator from Massachusetts. It struck me as ironic that Kennedy, whose opposition to the death penalty is passionate, led the opposition to a law that would have given Terri the same right to a hearing as condemned criminals. The opposition in the Senate led to the adoption of compromise bill which gave relief to the Schindlers alone, and not the broader protection offered by the House bill.

In the early hours of March 21, the House passed Senate Bill 686, "For the Relief of the Parents of Theresa Marie Schiavo". This bill provided for a de novo review of Terri's case, meaning that all of the issues and facts surrounding her case would be reconsidered. This de novo review was essential: Although Terri's case had come before several state and federal courts numerous times, all of the judges' opinions were based on the same set of factual findings made by Judge Greer in his 1998 decision granting Michael the right to remove Terri's feeding tube. In that decision, Judge Greer ruled as a matter of fact that Terri was in a persistent vegetative state, (PVS) and that Terri had indicated a wish not to go on living should she become dependent on artificial nutrition and hydration. As I have written before, both in CWR (November 2004) and in Crisis Magazine, these ruling were arrived at in a manner which rode roughshod over rules of civil trial procedure, and with what seemed to be a blind eye to the mountain of evidence contradicting them. The problem the Schindlers have faced, as I wrote in a recent article at National Review Online:
is that in our legal system, once a judge has ruled on a matter of fact, it is very difficult to revisit such a ruling. Lawyers have a rule of thumb that trial courts hear and rule on questions of fact, and appellate courts rule on questions of law. It is unusual for an appellate court to overturn a lower court’s ruling based on errors regarding issues of fact.

And so, at every turn in this case, the Schindlers had to try to undo the faulty rulings of fact previously issued by Judge Greer. They had to go back before Judge Greer himself and try to convince him that he was wrong, and should undo his own rulings. Judge Greer proved unwilling to do so. Higher courts were unwilling to overturn a trial judge’s rulings of fact and so, ruled against the Schindlers. The de novo review promised by the Federal "Terri's Law" held out the only hope.

A Partisan Struggle

As we all know, that hope was never fulfilled, as the de novo review never materialized. It was well known that many jurists took offense at the passage of Terri's Law, which they interpreted as a Congressional attempt to dictate how they should exercise jurisprudence. Speeches made by Tom De Lay and Senate Majority Leader Bill Frist decrying "activist judges" and an "out-of-control" judiciary solidified the impression that the battle over Terri Schiavo's life had become part of a political struggle: Those on the right saw Congress as trying to check the abuse of power by unaccountable judges. Those on the left saw the ability of judges to enact social change by the exercise of their legal authority imperiled by Terri's Law.

The reaction in the judiciary was evident from the outset. Firstly, federal judges seemed to completely ignore the provision in the new law to grant the de novo review. The "fresh look" at all of the facts and issues of Terri's case simply didn't happen. Instead, the judges confined themselves to re-examining the issues of law, just as they would have if the federal legislation had never passed. But the direction that events would take was indicated by remarks made by a federal judge at the conclusion of the first hearing held after the passage of the federal law. Federal Circuit Judge James Whittemore declined to rule immediately on the Schindlers' request to re-insert Terri's feeding tube, pending new litigation. In a comment that seemed motivated more by pique than any legal considerations, Judge Whitttemore declined also to indicate when he would issue a ruling. He said "I will not tell you when, how or how long it will take."

As it turned out. Judge Whittemore declined altogether the Schindlers' motion, and declined to allow the re-insertion of her feeding tube in light of further appeals. This act set the tone for the judicial decisions to come. In several forays up and down the federal courts system, the Schindlers were rebuffed at every turn. The Schindlers' attorney, David Gibbs, announced on March 28 that their legal remedies were exhausted, and they would file no further motions or appeals.

Errors of Fact

Terri's fate can be seen, ultimately, as the result of Judge Greer's dubious findings of fact at the 2002 evidentiary hearings, at which he concluded that Terri was in a PVS, and that she would not want to live in her disabled condition. The facts were crucial in deciding Terri's fate, as the result of Judge Greer's factual errors was fatal for Terri. These errors filtered into the public debate as well: there can be little doubt that much of the press coverage and commentary simply did not get the facts right concerning Terri's case, and this stream of misinformation weakened pubic support for Terri's cause.

In my 2004 CWR article "Saving Terri's Life" I described how the mainstream media was often content, during the 2003 conflict over the removal of Terri's feeding tube, to simply parrot the characterizations of Terri's case presented by Michael Schiavo and his attorneys rather than actually question their assertions and dig more deeply into the issues. Unfortunately, in this last round of debate and controversy, little changed. Some news outlets, such as Fox News, did a reasonable job of covering the issues fairly, and giving the pro-life position a fair hearing. Some commentators and pundits, such as Fox's Sean Hannity, took on Terri's cause as their own, and became powerful champions for her life. However, much of the media were content to merely repeat or even amplify the "memes" about Terri's case.

(A "meme" is an idea which may have little foundation in actual fact. being the product of rumor, innuendo, or gossip. However, because the idea is in some way convenient or useful, it is picked up and spread casually without investigation, and gradually acquires a patina of truthfulness, simply because it has been repeated so often. Memes become pervasive ideas, and frequently have the power to change public attitudes and perceptions. )

There were a number of memes circulated regarding Terri's case and repeated unquestioningly by the mainstream media. Among these were the assertion, frequently heard on cable talk shows, that "12 (or 16 or 19) judges have heard the case and ruled against the Schindlers." This assertion was offered as an argument for accepting the decision to remove Terri's feeding tube as one arrived at responsibly. But, of course, the number of judges who agree with a decision is irrelevant if all those judges' rulings are based on the same factual errors. Which was precisely the case regarding Terri Schiavo. As related above, all of the subsequent rulings on Terri's case were based on the same fact findings made by Judge Greer, which findings were never re-examined.

Another meme frequently asserted was that "Terri was bulimic." Bulimia is an eating disorder characterized by "bingeing and purging", and can cause serious health problems. This meme is interesting in that it was often introduced as a way of "blaming the victim": the idea being that somehow Terri brought her situation on herself, and therefore deserved her fate. It is also is interesting in that it simply has no foundation in actual fact or evidence. The "Terri was bulimic" meme was the product of speculation offered by Michael Schiavo and his attorneys as to the cause of the cardiac arrest which led to Terri's brain damage. However, there was no talk of Terri suffering from bulimia or other eating disorders among Terri's family or friends before her injury. The assertion did not surface until well after Terri's collapse. Furthermore, there is no actual medical evidence of such a condition, unless you credit the circular reasoning employed by advocates of Terri's death: In this argument, the fact (true) is asserted that bulimia is a known cause of electrolyte imbalance of the sort that caused Terri's cardiac arrest. Then the fact that Terri suffered an electrolyte imbalance is adduced as evidence that she was bulimic. Such an argument would not pass Logic 101, but the power of the meme is that is unexamined.

I personally encountered the power of this meme during a radio talk show interview. In the course of the interview, one of the hosts brought up the assertion that "Terri was bulimic". I pointed out the lack of evidence for the assertion, and the fact that it originated in speculation. The host responded by pointing out that she had read this same "fact" in "a number" of published articles. I answered by describing that memes worked in precisely this manner, and by demonstrating the circularity of the reasoning. After all was said and done, she rejected my argument saying, "well, I have to go with what the published reports indicate rather than what one priest says."

Far more damaging, however, were the memes circulated regarding Terri's medical care and diagnosis. I frequently encountered assertions that all medical options had been exhausted in Terri's case, and that Terri had had the best of care. Both assertions were simply false.

The fact is that Michael Schiavo, as Terri's guardian, allowed no therapy or attempts at rehabilitation since 1992. He also forbade the physical therapy to minimize contractures and muscle atrophy that is commonly provided even for bedridden patients in a vegetative state.

Furthermore, the idea that Terri has had the "best of care" is belied by the fact that, for the last five years of her life, Terri was at a hospice rather than at a nursing home or hospital. By definition, hospices offer a lower "standard of care" than even a nursing home. Hospice care is intended for patients who are recognized as terminal; only basic nursing and palliative care is provided. Therapeutic measures aimed at improving a patient's condition are not offered by hospice.

An Irresponsible Diagnosis?

The most misleading memes surrounded Terri's diagnosis and medical condition. Readers and viewers of the mainstream media were barraged with reports that Terri was in a PVS, frequently without even the mention that this diagnosis had been challenged and was doubted by responsible doctors. I frequently encountered statements such as "all the doctors" who had examined Terri concluded that she was PVS", or a cleverer version that gave at least a nod to reality: "all the reputable doctors who examined Terri found that she was PVS."

But such assertions ignore a disturbing set of facts which I discovered in the course of my research for the National Review Online article mentioned above. In my discussion with a number of board certified neurologists, some of whom are professors of neurology at major medical schools, I learned that the diagnoses of the neurologists who appeared in court for Michael Schiavo, and the one appointed by Judge Greer, were arrived at in a manner inconsistent with sound neurological practice, and which did not live up to the guidelines established by the American Academy of Neurology.

Firstly, though the doctors who examined Terri on behalf of the Schindlers asked for Terri to be given an MRI (Magnetic Resonance Imaging) scan, Judge Greer refused it, as the "star" medical witness for Michael Schiavo, Dr. Ronald Cranford, said that an MRI was unnecessary. Lower quality CT (computer aided tomography) scans were done instead. And who made the decision regarding which medical tests Terri was to have? Judge Greer did. According to Patricia Anderson, the attorney for Bob & Mary Schindler until the fall of 2004, Judge Greer went down the list of tests requested by the doctors and himself "checked off" which ones Terri would receive. Judge Greer's method led Anderson to comment that the judge "practiced quite a bit of medicine in this case."

Many neurologists, as the facts about Terri's diagnosis came out in the weeks before and after the removal of her feeding tube expressed dismay with the lack of advanced imaging procedures. Indeed, nearly fifty neurologists, all of them board-certified and many of them leaders in the discipline, came forward and either offered, or expressed a willingness to offer, affidavits calling on the court to allow new neurological exams of Terri, including advanced imaging tests such as MRI. The neurologists I have interviewed all acknowledge that the diagnosis of PVS is primarily "clinical": that is, arrived at mainly on the basis of examination rather than from tests. However, many also asserted that they would themselves order an MRI in a case like Terri's, when life and death are at stake. As one of them, Dr. Peter Morin, explained, an MRI is very useful in "determining the extent of brain injury," and in assessing the likelihood of the patient's improvement or recovery. Dr. Kalarickal Oomen, a professor of neurology at Oklahoma University Medical School, added that "MRI in many cases gives much better anatomic detail than CT, and is far superior" to the CT scans which were done on Terri in 2002. The value of MRI in assessing brain injured patients such as Terri led several neurologists to go so far as to characterize a decision to deliberately forego one (as was done with Terri) as "not responsible".

The guidelines laid down by the American Academy of Neurology for diagnosing patients suspected of being vegetative remark that the diagnosis of PVS can require months to establish. These guidelines also call for careful, repeated examinations of the patient. Neurologists also explained that these repeated visits need to be conducted at varying times and under different circumstances: Dr. William Bell, a professor of neurology at Wake Forest University Medical School, explained that brain-injured patients have severely disrupted sleep/wake cycles, and that a doctor can examine such a patient on one day and find him seemingly unresponsive, but return at a different time the next day and find the patient quite alert and aware of his environment. A 1996 article published in the British Medical Journal , which reported a 43-percent error rate in diagnoses of PVS, also cautioned that a "bedside assessment" alone was "inadequate" to make a diagnosis of PVS.

But the exams conducted by the three doctors retained by Michael Schiavo and the court were in fact nothing but the kind of "bedside assessments" deemed "inadequate" in the BMJ study. Each doctor examined Terri for no more than 45 minutes, on only one occasion. Neurologists I interviewed did not object to the length of the exams, saying that a neurological exam could be conducted in 30 - 45 minutes. However, all of them expressed dismay at the lack of repeat exams. Dr. Mouhammed Kabbani, of the University of Missouri Medical School, said "A single exam for 45 minutes is not enough. There should be continuous observation over a few days," he added, "to make sure there is, or there is not, meaningful and reproducible response."

The claims regarding the reliability of Terri's diagnosis of PVS turn out, on further examination, to be as groundless or exaggerated as the many other memes propagated by the media. Dr. Bernardine Healy, a former director of the National Institutes of Health and medical columnist for U.S. News and World Report , lamented that the medical procedures followed in Terri's case were simply "not good enough" for a situation "when life--and death--are on the line." While some reporters and commentators, such as Dr. Healy, attempted to stem the tide of misinformation, they appear to have been drowned out. This lack of diligence by the press, and, in many cases, seemingly willing cooperation with the pro-death agenda, led Nat Hentoff, the acknowledged leftist and avowed atheist writer for The Village Voice , to describe the coverage of Terri's case as "disgracefully ignorant."

The Pro-Life Presence

The opposition to Terri's starvation and dehydration was spearheaded by the pro-life movement, including many Catholics. Fr. Frank Pavone, the national director of Priests for Life, was frequently with the Schindlers visiting Terri, and joined those keeping vigil outside Terri's hospice, He also appeared frequently on television, speaking out for Terri's right to life. Fr. Thomas J. Euteneuer of Human Life International also came to Florida to lend support to the Schindlers, and made several media appearances on their behalf.

As I remarked in my CWR article last November, the movement to save Terri brought Catholics and Protestants together in a remarkable display of ecumenism in its best and truest form. Indeed, not only Catholics and Protestants, but large numbers of Jews and Muslims also gave witness to the dignity and sanctity of human life. There were a number of prominent Protestants who provided leadership in mobilizing support for Terri's cause, and presented the case for Terri's life to the public. Perhaps the most passionate and eloquent of these was Dr. James Dobson of Focus on the Family. Dr. Dobson's stature among conservative Protestants is perhaps unmatched, and he became the de facto Evangelical voice for Terri in the media.

While Fr. Pavone's leadership and voice was invaluable, the case for the dignity of life was weakened by the lack of a strong and uncompromised witness from the Catholic hierarchy in the U.S. Some individual bishops, such as Cardinal Rigali of Philadelphia, Bishop Wenski of Orlando, and Archbishop Burke of St. Louis, spoke out admirably on behalf of Terri's right to life. Cardinal William Keeler of Baltimore, chairman of the US bishops for Pro-Life Activities, in a March 9 statement, urged that Terri should “continue to receive all treatments and care that will be of benefit to her.” He cited the aforementioned speech by Pope John Paul II, reminding us that even people in a vegetative state "retain their human dignity in all its fullness”. He added that “deliberately to remove [food and water] in order to hasten a patient’s death … would be a form of euthanasia, which is gravely wrong.” In spite of that statement, though, there seemed to be little movement at the national level to make a coordinated effort, in the name of the American bishops, in Terri's case.

Progressive moral theologians such as Fr. John Paris of Boston College and Fr. Kevin O'Rourke made the rounds of the talk shows presenting their view that the starvation and dehydration of Terri Schiavo was consistent with Catholic teaching. Rarely mentioned was Pope John Paul II's March 2004 statement that food and water are the presumptive right of every patient and must be provided. When it was mentioned, Frs. Paris and O'Rourke dismissed the pontiff's pronouncement as his "personal opinion", or otherwise indicated that it could be ignored.

As Catholic progressives rushed to defend Terri's starvation and dehydration, and Evangelical leaders such as Dr. Dobson presented a powerful case for life from that perspective, a question arose in the minds of many Catholics: Where was the voice of the hierarchy? Where was the Catholic equivalent of a James Dobson — someone of high stature and authority, like a bishop — to go on the talk shows and refute the Parises and O'Rourkes? Where was a Catholic spokesman to present authentic Catholic teaching with episcopal authority to the public at large? There was none. As Catholic writer Amy Welborn wrote at her weblog, Open Book (, a "teachable moment", a great opportunity for the American hierarchy to present the Catholic vision and teaching on human life to the nation, was lost through inaction.

The Bishop's Absence

Bishop Robert Lynch heads the St. Petersburg, Florida, diocese, in which Terri resided. Readers will recall that, in my November '04 CWR article on Terri's case, I documented his inadequate, and indeed, one might argue, counterproductive, statements during the October 2003 removal of Terri's feeding tube. He refused, in spite of numerous requests by the Schindlers in the months leading up to October '03, to make any public gesture showing support for their efforts to save Terri's life. Neither did the Diocese of St. Petersburg sponsor any events or activities to encourage support for Terri's cause among priests or laity.

Unfortunately, in the weeks leading up to, and after the removal of her feeding tube, Bishop Lynch did not seem to deviate from his pattern of non-engagement in Terri's cause. He was virtually invisible during this time.

On February 28, he issued a statement in which he acknowledged that the Schindlers felt "they are outside of the decision-making process" and that "they are in great pain and suffering mightily." He devoted most of the statement to urging "both sides" to "allow some mediation" so that Terri's legacy was "a heroic moment of concern for the feelings of each other, guided by moral and ethical considerations, with a single focus of achieving the best result for Terri." Nowhere in the statement did Bishop Lynch address the substantive issues or acknowledge that Terri had a right to life. He referred to normal "end-of-life" cases, where families know that "they have done all they possibly might to provide alternatives to death", and have attempted "every possible treatment protocol which might be helpful". But he did not seem to recognize that such had not been done regarding Terri. In my November CWR article, I reported that Bishop Lynch seemed to view Terri's situation as little more than a family dispute. By his use of language about "decisions made within families", and of "both sides" coming together, he showed that he still understood the case that way, and not as a grave injustice being perpetrated on one of his flock.

(continued below)