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Was Terri Schiavo's death assisted suicide?

Editor’s note: The following analysis is by Diana Lynne, whose powerful, comprehensive book on Terri Schiavo’s life and death, entitled “Terri’s Story,” is now available at WorldNetDaily’s online store.

Assisted suicide is illegal in Florida – as it is in every state but Oregon – yet the name “Terri Schiavo” frequently crops up in press reports about the Supreme Court reviewing Oregon’s assisted-suicide law, suggesting many viewed the case as either an assisted suicide or “mercy killing.”

With John Roberts freshly installed as its chief, the U.S. Supreme Court kicked off its fall term by considering the case of Gonzales v. Oregon, the challenge mounted by the Bush administration against the state’s Death With Dignity Act. Passed with 51 percent of the vote in a 1994 ballot referendum, the law allows mentally competent adults who are suffering from terminal illness to be prescribed lethal doses of drugs by their doctor.

As of the beginning of this year, 208 patients took advantage of the law, according to Oregon Department of Human Services, which tabulates the voluntary reports.

In 2001, then-Attorney General John Ashcroft declared any doctors who participated in Oregon’s physician-assisted suicide would be violating the federal Controlled Substances Act and risk losing their licenses. The Act requires that drugs be prescribed for “legitimate medical purpose,” not assisted suicide, in Ashcroft’s view. After his directive was dismissed by lower courts, the administration appealed its case to the high court.

While Gonzales v. Oregon is primarily viewed as the quintessential states’ rights case, U.S. News & World Report predicts it will also serve as a continuation of the ferocious debate “stoked by the battle earlier this year over Terri Schiavo … over the legality and morality of ending human life with the blessing of the state and the aid of a physician.”

In 1990, Terri Schiavo suffered brain damage after mysteriously collapsing at home at the age of 26. Pinellas-Pasco County Circuit Court Judge George Greer ruled in 2000 she was in a persistent vegetative state, or PVS, from which she would never recover. He affirmed that decision in 2002, siding with the opinion of two expert witnesses solicited by Terri’s husband, Michael Schiavo, and one court-appointed neurologist. Dozens of medical experts subsequently filed sworn affidavits disputing the PVS diagnosis, but these opinions were never heard in court.

Most news organizations led readers and viewers to believe the autopsy “confirmed” the PVS diagnosis. Neuropathologist Dr. Stephen Nelson, who assisted medical examiner Dr. Jon Thogmartin, reported the post-mortem findings, such as a significantly shrunken brain, were “very consistent” with PVS. However, both Nelson and Thogmartin emphasized that PVS is a clinical diagnosis to be made on a live patient, not dead. Upon questioning by this writer at a June 15 press conference announcing the autopsy results, Nelson admitted he could not rule out the possibility that Terri Schiavo was in a minimally conscious state, or MCS.

Although Terri Schiavo could breathe and maintain blood pressure on her own, doctors believed she required a feeding tube to receive nourishment (although the last swallowing test administered to her was in 1992).

In 1998, Michael Schiavo filed a petition to remove Terri’s feeding tube. On the basis of his testimony and that given by his brother and his brother’s wife that years prior to her injury Terri had made casual statements indicating she didn’t want to be kept alive by artificial means, Greer ordered the feeding tube removed and also barred oral nutrition and hydration.

The Schindlers, Terri’s parents and siblings, claim the Schiavos’ testimony was fabricated and testified the devout Catholic believed in the sanctity of life and would want to live even in her impaired state. Their seven-year court battle failed to persuade Greer, and the feeding tube was removed on March 18. Terri Schiavo died of dehydration 13 days later.

Other media outlets, including National Public Radio, Agence France-Presse and Knight Ridder Newspapers also mention assisted suicide and Terri Schiavo in the same breath. The obvious conclusion that can be drawn by this linkage is that the fine-line distinction between removing a feeding tube to cause death by dehydration and prescribing a lethal dose of drugs is lost in the minds of some journalists and many Americans across the country.

Both acts result in hastening death. In Terri’s case removing the feeding tube hastened death by a decade, according to the estimate of the medical examiner who performed her autopsy.

The Supreme Court, under the leadership of the late Chief Justice William Rehnquist, held the opinion in 1997 that there is a difference between assisted suicide and pulling feeding tubes. While rejecting arguments in Washington v. Glucksberg that obtaining assistance in committing suicide was a fundamental liberty interest protected under the 14th Amendment, the Court reaffirmed its 1990 Cruzan opinion that Americans have a constitutionally protected right to refuse lifesaving nutrition and hydration. The justices held that this right stems from the centuries-old common law rule that forced medication was considered a battery.

“This court disagrees with the Second Circuit’s submission that ending or refusing lifesaving medical treatment is nothing more nor less than assisted suicide,” Rehnquist wrote in the majority opinion in Vacco v. Quill. “The distinction between letting a patient die and making that patient die is important, logical, rational and well-established.”

Florida’s high court concurred in 1990 when it ruled elderly stroke victim Estelle Browning had a constitutional right to refuse food and water, according to her wishes as outlined in an advance directive. Browning died, however, before she won the right to have her feeding tube removed. As he argued in Browning’s case, right-to-die attorney George Felos maintained Florida’s constitution provides that Terri Schiavo had a privacy right to control her own body. In the absence of an advance directive, that control was ceded to her court-appointed guardian husband.

Florida legislators who crafted a state statute that allows people in terminal or end-stage conditions who’ve signed advance directives to choose death over medical intervention, and which outlines a protocol to follow for ending the life of incapacitated patients who have no advance directives, took pains to add a disclaimer to their legislation which reads:

  1. Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

  2. The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide.

Incidentally, the protocol for ending the lives of incapacitated patients who do not have advance directives was amended in 1999 while Terri Schiavo’s case was pending to include those in PVS, and the definition of life-prolonging procedures which can be removed from patients was expanded to include artificial nutrition and hydration – feeding tubes.

These and other significant changes to the law were drafted by a state panel comprised largely of hospice industry advocates and right-to-die proponents. The panel was authorized by the Legislature and formed after the pro-euthanasia Hemlock Society failed to achieve legalized physician-assisted suicide through the court case of Charles Hall, an AIDS sufferer recruited by the organization to sue Florida over its ban on assisted suicide.

Despite the judicial and statutory clarifications, non-lawyers and lawyers alike feel the distinction made between removing a feeding tube and suicide or mercy killing amounts to ethical hair-splitting.

Rutgers Law School professor Norman Cantor offers an intellectual distinction: Suicide involves initiation of a self-destructive action while refusal of treatment involves letting a fatal affliction follow its natural course. This distinction is easier to grasp in a scenario where a cancer patient opts to forego chemotherapy. It’s much less clear when the “medical treatment” declined or removed is a feeding tube.

Therein lies the rub for many critics of Terri Schiavo’s death. Is a feeding tube medical treatment or just basic care? Is brain damage a “fatal affliction” or a disability?

The language used greatly matters in this case, as pro-euthanasia forces have learned over the years. Hemlock Society founder Derek Humphrey prefers the term “assisted dying” over “assisted suicide,” but laments on his website that the news media are fixated on “suicide.” Barbara Coombs-Lee, co-president of Compassion and Choices, the right-to-die organization sponsoring legislation to legalize assisted suicide in California, similarly urged the news media last week to avoid the term “suicide” because public opinion research indicates it “biases audiences against patients and their families.”

“‘Suicide,’ or ‘assisted suicide,’ or ‘physician-assisted suicide’ are loaded, pejorative terms that paint terminally ill patients in the same negative light as terrorist bombers,” explained Coombs-Lee, according to Business Wire.

Felos was quick to cry foul when a reporter characterized the court-ordered death of 41-year-old Terri Schiavo as euthanasia. Still, the suggestion of “letting Terri die” was widely promoted. The phrase connotes compassion with the act of removing the feeding tube.

However, Terri Schiavo was neither terminally ill nor suffering. Her treating physician testified she was relatively healthy.

Disability-rights organizations bristled at the notion a relatively healthy woman who suffered brain damage but was not dying should be “allowed to die.” They view the assertion as an outgrowth of deep-seated bias against people with disability in America. Sixteen advocacy groups such as Not Dead Yet filed friend-of-the-court briefs opposing Terri Schiavo’s death.

Not Dead Yet also filed a brief in Gonzalez v. Oregon. Advocates fear legalized assisted suicide fosters the “better dead than disabled” mentality.

For those who see no moral distinction between assisted suicide and feeding-tube withdrawals, the bigger battle for disability-rights and civil-rights advocates may lie with states like Florida where such deaths occur by the thousands without the explicit, uncontested consent and the active participation of the patient. Causing the death of incapacitated patients when there’s reasonable doubt over whether they wish to die may pose a greater threat to civilized society than stepping out of the way of terminally ill adults bent on putting an end to their suffering.

In the words of Rehnquist, “The distinction between letting a patient die and making that patient die is important.”

Diana Lynne

WorldNetDaily has been reporting on the Terri Schiavo story since 2002 – far longer than most other national news organizations – and exposing the many troubling, scandalous, and possibly criminal, aspects of the case that rarely surfaced in news reports. Coming next week … the definitive book on the Terri Schiavo saga, titled “Terri’s Story: The Court-Ordered Death of an American Woman.” Author Diana Lynne tells a powerful, insightful, and ultimately heartbreaking story. This eye-opening book provides the background and depth missing in most of the national news coverage of the pitched battle over the life of Terri Schiavo.