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June 5, 2005

What can we do?

Topics: Commentary

Source: Lydia, Truth and Action

After Terri Schiavo was killed, many of us wanted to say, "Never again." But we have realized that it has happened before and probably will happen again.

Indeed, the legal situation is not very good. The Cruzan decision (U.S. Supreme Court, 1990) codified the "constitutional right" to be dehydrated to death, to refuse "artificial" nutrition and hydration (ANH), and even to "refuse" it merely by way of remarks made long ago. That decision also affirmed that states could require "clear and convincing evidence" that this was the person's wish, but we saw in Terri's case that such a requirement may be nearly meaningless in practical terms.

So what can we do, not only personally but also legally and in the culture at large, to try to prevent other people from being murdered (I make no apology for the term) as Terri was murdered?

Here are some ideas, divided into two main sections:

I. Know any state legislators?

Okay, even if you don't, there are modest but significant legislative ideas you should try to push at your state level. Get in touch with any pro-life state representatives you do know and try to light a fire under them for these ideas. And get in touch with your state Right to Life organization and suggest that they investigate these avenues.

*Does your state protect people who have requested ANH or other life-preserving measures?

National Right to Life has released an important and chilling report. The whole report is here. (Warning, this is a large pdf document.)

Only ten states provide clear protection for those who have indicated (e.g. in an advance directive) that they do want their lives to be preserved, that, for example, they do want ANH. Those "good" states (on this point, at least) are Alabama, Florida, Kansas, Maryland, Massachusetts, Minnesota, New York, Ohio, Oklahoma, and Wyoming. A large number of states allow people to be involuntarily denied any "treatment," including ANH, even when they have requested it, and make no provision for requiring life-sustaining measures pending transfer. (So much for "choice.") Those "bad" states are Arkansas, Connecticut, Georgia, Idaho, Illinois, Iowa, Kentucky, Louisiana, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Tennessee, Vermont, Washington, West Virginia, and Wisconsin.

In between are many different levels of vagueness, protection, and semi-protection. We've all heard about Texas's requirement that a hospital give ten days' notice before cutting off life-sustaining treatment. Well, in the country as a whole, that's actually pretty good, compared to the alternatives (such as no notice at all).

Check out your own state laws on this. And if they could be improved, press your representatives to improve them. Personally, I think the Alabama law is a good model. It expressly requires that ANH be given pending transfer when a doctor no longer wants to treat a patient, and there is no time limit after which life support can be discontinued.

*Does your state allow non-dying people to be called "terminal" and admitted to hospice?

Many people aren't aware that some doctors and ethicists call people "terminal" or "dying" when this just means that they will die quickly if food and water are withdrawn! Is that crazy? It certainly is. We all will die quickly if food and water are withdrawn. But throw into the mix the fact that a person is in some "undesirable" state-senile, PVS, elderly, or otherwise ill-and even if the person isn't otherwise dying, some doctor can probably be found to diagnose him as "terminal," especially if he isn't able to feed himself.

States should expressly legislate that it is medical fraud to declare a person terminally ill, e.g. for admission to hospice, if he is not expected to die of some illness within the relevant period of time (e.g. three months, six months). The legislation should expressly state that a person is not "terminal" just because he will die shortly if food and water (perhaps administered by feeding tube) are withdrawn.

*Does your state have high standards for "clear and convincing evidence"?

Louisiana has led the way in drafting legislation according to which a person is not deemed to have refused ANH just because he said he wouldn't want "life support." This is good. Lots of people don't mean to refuse ANH by refusing "life support" or "artificial means," either in conversation or in living wills. It should at least have to be determined that there is clear and convincing evidence that the person explicitly rejected ANH, not simply that the person "wouldn't have wanted to live like that" or "wouldn't have wanted to live artificially." Remember, no one (except perhaps Michael on some talk show, and not even Michael in court) alleged that Terri had made explicit and specific reference to a feeding tube. This should be required.

*Does your state require spoon feeding?

Often people are put onto a feeding tube for ease of care, not because they really can't swallow. Terri probably could swallow, but Judge Greer got to decide whether she would have a swallowing test before being killed and whether her parents would be allowed to try to give her anything by mouth. He called attempts to feed her by mouth "experimental" and rejected them, and so she died with police in her room to prevent anyone from giving her ice chips or small amounts of water.

Remember that it is only artificial administration of food and water that has legally been called "treatment." But how often is any effort made to find out if the person can in fact eat or drink when fed carefully by spoon or straw? Not often, if the intent really is for the person to die.

That decision should not have been left up to Judge Greer. State laws should specify that any person who is about to have a feeding tube removed because there is (supposedly) "clear and convincing evidence" that he wouldn't have wanted one must be given a swallow test at that time or attempts at mouth feeding. And if the patient can take any food or hydration by mouth, he must be given all that he can take that way. The patient cannot be left to die with nothing, as Terri was.

II. Know any good hospitals or nursing homes?
We all know horror stories. And horror stories have their place. We shouldn't hide from the bad stuff.

But people need places where they can be safe. If you know of a nursing home or hospice in your area that has encouraged and supported the giving of ANH, tell us about it. Sure, that's no promise for the future, but it is worth knowing.

Also, in some states a person can be transferred to a different facility if one hospital decides his care is "futile." Do you know of a hospital or nursing home that might serve as such a transfer facility? Evidence for this might be that an institution has been entirely willing to continue ventilation or tube feeding and has not pressured a family to stop.

And if you know a hospital administrator or someone pro-life who is "in" with the medical establishment in your area, let us know about that, too. Such a person might be a good liason for finding transfer facilities when they are needed.


Okay, there you have it. There are things we can do. So let's get to it!

Posted by tim at June 5, 2005 6:16 PM

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Thank you, Tim.

Posted by: Eyes Wide Open at June 5, 2005 9:33 PM