Death by court order: what judges have wrought.

THE death certificate for Theresa Marie Schiavo should record that she was killed by court order. The state courts flagrantly violated the democratically enacted laws of Florida--laws expressly intended to protect the incapacitated and vulnerable whenever there is doubt about their true condition or their desire to live. When the Congress and the president of the United States took extraordinary steps at the end to have the case reviewed, the federal courts haughtily ignored them.

The courts' overreaching began in 1990, the very year Terri Schiavo, then 26, was stricken. The Supreme Court that year decided the Cruzan case, which concerned another woman's tragedy. Here, the Court held both that the Fourteenth Amendment guaranteed a right to decline medical treatment, and that medical treatment included basic sustenance. Further, the Court held that a surrogate could exercise this right for people who (a) were in a "persistent vegetative state" (PVS) and (b) had convincingly expressed a desire not to be sustained if they ever reached that state.

Both tests were dangerously imprecise. PVS combines the total loss of higher cognitive functions with the persistence of rudimentary reflex responses. A person who is minimally conscious and responsive to stimuli is not in a PVS. Because the condition is so difficult to get a precise fix on, some experts peg its misdiagnosis rate as nearing one out of every two cases. The Court's standard for intent, meanwhile, did not require a reliable piece of writing, such as an authenticated will. Hearsay would do the trick.

States then had to draw up legislation to confine the obvious potential for abuse. In 1992, Florida enacted laws that followed Cruzan in placing the will of the individual above any concern for the intrinsic value of life. Those laws, however, insisted that before sustenance could be withdrawn it had to be reliably established that the individual had really wished it so. Whenever there was ambiguity about an incapacitated person's desires, Florida's courts were enjoined "to defend life"--to presume that the person wanted nourishment.

Other safeguards were enacted. PVS was tightly defined as a "permanent and irreversible condition of unconsciousness" with no "voluntary action or cognitive behavior of any kind" (emphasis added). Two competent physicians had to diagnose PVS and say that there was no reasonable probability that the patient would improve. Surrogates for an incapacitated patient could cut off sustenance only after demonstrating that the stricken person would have so decided. As an additional safeguard, Florida law expressly prohibited judges from assuming the dual role of guardian of the patient. Finally, all these findings had to be proved with "clear and convincing evidence." This standard, although high for such civil cases, is much less demanding than the "beyond a reasonable doubt" standard that applies in criminal cases. Florida was thus opting to let judges put vulnerable, incapacitated patients to death more easily than they could send criminals to jail.

In Terri's case, the submitted evidence fell laughably short of inspiring a confident conclusion that the patient had much thought about whether--let alone decided that--she wanted to die if she ever became incapacitated. The contention that she was actually in a PVS was doubtful. She was finally killed by starvation and dehydration, over 13 excruciating days, only because the judges, in their imperious wisdom, decided that this was best for all concerned.

Terri also appeared to be responsive to stimuli, responsive to the presence of familiar persons (such as her parents), and capable of making noises. Experts debated whether these were indicative of minimal consciousness or mere reflex response. Definitive clarity might have been provided by functional magnetic-resonance imaging or positron-emission tomography scans, tests that nowadays are standard for deciphering the extent of brain damage. But Terri's legal guardian, Michael Schiavo, refused to have these tests done, relying on mere computer-aided tomography scans, which provide far less information.

If the evidence of PVS was equivocal, the proof that Terri wanted to die was ridiculous. At a 1992 civil trial--at which he was awarded over a million dollars in medical-malpractice damages (the lion's Share as a trust for Terri's continued care)--Michael Schiavo not only never hinted that Terri had opted against being maintained if incapacity befell her, he actually told the jury that he was studying nursing to become a better caretaker because he fully expected his young wife to survive for her normal life span.

A CONVENIENT RECOLLECTION

After the jury award, Schiavo suddenly remembered, some seven years after Terri had been stricken, a few offhand remarks his wife had purportedly made about not wishing to live if ever she became "a burden to anybody" or had to be maintained by "artificial" means. This was a prelude to his first energetic effort, in 1997, to have circuit-court judge George Greer of Pinellas County withdraw food and water from Terri. Her parents vigorously objected, and Judge Greer was moved to appoint as guardian ad litem an independent attorney, Richard Pearse.

Pearse found Michael's alleged recollections to fall well short of the "clear and convincing evidence" standard. Further, with Terri's appointed surrogate so palpably compromised--Michael was by now involved with another woman, and would eventually have two children with her--Pearse requested that he be authorized to continue to represent Terri.

Judge Greer, however, had plainly become convinced that Terri's life was not worth living. Neither a commonsense appraisal of Michael's sudden and self-interested memory, nor affirmation of that common sense by an independent attorney, nor laws passed by a mere legislature were going to stand in the way. Greer simply dispensed with the inconvenient Pearse. He decided to break the deadlock between Michael and Terri's parents by becoming Terri's caretaker himself. Greer decided that Michael's recollections gave Greer "a sufficient basis to make this decision [to die] for her." That decision would allow "her family members and loved ones to be free to continue their lives." Never mind that Terri's parents and siblings wanted to care for her, not "to continue their lives" by having her killed. But judges are kept out of the surrogate role precisely to keep them mindful of the question of the patient's intent, not of the yoke the patient's condition imposes on "family members and loved ones." And the law includes a presumption that doubtful eases be resolved in favor of a patient's life.

Terri's outraged parents, the Schindlers, immediately sought reconsideration. They proffered new evidence, including testimony from one of Michael's girlfriends establishing that he and Terri had never discussed end-of-life choices. This was exactly the type of new information the Supreme Court in Cruzan had cited as a valuable reason for erring on the side of life. Greer, however, held that the new evidence was untimely and declined to hear it.

The Schindlers won a delay of the order to withdraw food and water so that they could present new evidence. They immediately sought an independent medical examination, an independent guardian, and a new judge. Greer, seeing no conflict in reviewing a judicial decision that he had made--and made largely on the basis of his own caretaker decisions--peremptorily rejected these motions. The Schindlers then proffered additional new witnesses attacking Michael's recent alleged recollections regarding Terri's purported wish to die, and affidavits from a spate of independent experts that Terri was not in a PVS. Greer simply refused to hear the new witnesses regarding Terri's intentions because, in his view, they were not plausible.

The appellate court upheld Greer's refusal to hear evidence about Terri's wishes, but directed Greer to look into the new PVS evidence. In the process, however, the appellate court rewrote Florida law in a way that made the Schindlers' burden heavier. It directed that they would have to prove that there was realistic promise of "increased cognitive function" (emphasis added) that would so "significantly improve the quality of [Terri's] life" that she "would reverse the prior decision to withdraw life-prolonging procedures." Remember: If Terri had any cognitive function, she was not in a PVS as defined by Florida law. The demand that there be increased cognitive function to stave off death was thus highly inappropriate.

The resulting proceeding before Judge Greer was predictable. He sided with Michael Schiavo's experts, including a neurologist, Dr. Ronald Cranford, who doubles as a euthanasia activist, and who has written that he believes Alzheimer's patients to be so lacking in personhood as to merit death by starvation. Cranford had examined Terri for 45 minutes. Greer consequently rejected experts for the Schindlers, who relied on Terri's responsiveness during contact with her mother, among other familiar persons. The appeals court, contrary to the talking points of Michael Schiavo's right-to-die partisans, did not conduct a searching review of the record. It decided that it would reverse Greer only if it found a "gross abuse of discretion." It declined to find that abuse.

TERRI'S LAW

As a result of this ruling, Terri's feeding tube was removed on October 15, 2003. Less than seven days into the two-week "natural death process," however, the Florida legislature, at Gov. Jeb Bush's urging, enacted "Terri's law." This emergency measure was a one-time reprieve, replacing the feeding tube so that an independent guardian ad litem, Dr. Jay Wolfson, could quickly investigate and report back to the governor and the court. The provision was eminently sensible given the dubious nature of the court proceedings. It also echoed the wise reasoning of a Florida supreme court from another era. In 1980, that tribunal explained that decisions to end life are so fraught with complexities of law, medical ethics, and social morality that they are not "well-suited for resolution in an adversary judicial proceeding," but better fitted for "the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized."

In late 2003, Wolfson reported that while the current weight of evidence suggested that Terri was in a PVS, additional testing to probe cognition as well as other therapy would be desirable. More significant, he concluded that the circumstances of the litigation had "compromised" the evidence, and that unless there were a "fresh" examination of the case, "Theresa will not be done justice." Wolfson recommended that his appointment be extended to protect Terri's interests through the conclusion of such a final resolution. The Florida courts responded with the insouciant hauteur that had by now become familiar: Wolfson was told his services were no longer needed, and Terri's law was held to be an unconstitutional invasion of judicial prerogatives.

Terri's starvation and dehydration commenced in earnest on March 18, 2005.

Like the political branches in Florida, however, President Bush and broad, bipartisan swaths of the Congress were outraged by the appallingly thin factual basis on which a helpless, brain-damaged woman was being put to death by court order. This record, it bears repeating, would have been laughed out of court had Terri Schiavo been a terrorist charged with mass homicide--presumed innocent and thus to be set free absent proof beyond a reasonable doubt by a unanimous jury of twelve after a full-blown trial with the assistance of counsel and copious layers of state and federal appellate review. Under the dire circumstances, Congress extended its recess adjournment to convene an extraordinary weekend session, passing emergency legislation in the wee hours of Monday morning, March 21. President Bush flew to Washington in the middle of the night to sign it.

The bill made no bones about what Congress and the president wanted. They wanted the feeding tube restored and the case thoroughly vetted. The new law directed the federal district court in Florida to "determine de novo any claim of a violation of any [federal] right of Theresa Marie Schiavo ... notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings." In short, Congress wanted those fighting for Terri's life to get what they had never gotten in Florida: an uninhibited opportunity to present all of the relevant evidence on issues of choice and PVS to a neutral court for determination of whether any right had been infringed.

Terri's case was assigned to federal district judge James D. Whittemore, who had spent a decade as a colleague of Greer and others on the state bench in Florida before President Clinton named him a federal judge in 2000. Whittemore could easily have read the emergency statute to imply a demand that Terri's tube be immediately replaced. He could have construed the law to require the de novo hearing Congress had prescribed, and then carefully deliberated on this matter of life and death. He chose not to.

Showing great deference to Judge Greer, Whittemore decided that he would not look into the basic facts of the case, but would rather assess Florida's laws and procedures. He decided those laws and procedures were apt to produce just results, and that any federal due-process concerns were thus assuaged--but did not bother investigating whether just results had actually been produced. And finding that the Schindlers' lawsuit was unlikely to succeed, Whittemore declined to order the reinsertion of the feeding tube.

A three-judge panel of the Eleventh Circuit promptly affirmed Judge Whittemore in a divided opinion. In a spirited dissent, however, Judge Charles R. Wilson (another Clinton appointee) pointed out that there was a ready avenue by which the court could accede to Congress's demand that a full, fresh evaluation of Terri's case be made. The so-called All Writs Act permits a court that has jurisdiction over a matter to issue orders in aid of that jurisdiction. So, for example, the court could issue an order to keep Terri alive long enough to ensure that the litigation was brought to a just end. The All Writs Act is a broad power that gives judges great discretion to do what they think justice requires. Only five months ago, a federal judge in the District of Columbia used it to order that American taxpayers provide lawyers to enemy combatants detained in Guantanamo Bay, Cuba. Terri Schiavo, of course, was not an al-Qaeda terrorist, but civil rights for America's enemies are a cause for America's academy, its media, and its courts. So is the "right to die."

But not, alas, the right to live. There would be no relief for Terri Schiavo. When the Schindlers sought rehearing before the entire Eleventh Circuit, Judge Wilson's contentions fell on deaf ears. If the courts--the state courts, the federal courts, the U.S. Supreme Court--had wanted to save her life, or merely to follow Florida law, she would be alive today.

Mr. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies, and a contributor to National Review Online.