Suppose the Schindlers Had Won the Schiavo Case

Abstract:     
In this Article, I will identify and discuss the harms that would have occurred had the Schindlers won the Schiavo Case - the harms both to Terri Schiavo in the private case and the larger set of harms to public policy in the public case. The Schindlers fought Michael Schiavo on a variety of battlegrounds - the Florida courts, the Florida legislative and executive branches, the federal courts, and eventually Congress. Had they definitively prevailed in any of these forums, the consequences for end-of-life decisionmaking would have been largely the same. Had they prevailed in Congress or even in the state legislative and executive branches, however, the consequences would have implicated issues beyond end-of-life decisionmaking, potentially altering the balance among legislative, executive, and judicial power and between federal and state power. Separation of powers and federalism, however, are not the topics I will address.

Had the Schindlers won the Schiavo case, the legal consensus about end-of-life decisionmaking would have suffered serious setbacks, if it had not been sent into total disarray. From a legal perspective, the Schiavo case is pure anticlimax because after all the litigation and legislation - not to mention fighting, and shouting, and even shoving - it did not work any changes in the law. History will view it as another in a series of high profile cases in which the consensus - the legal consensus, the clinical-professional consensus, indeed the societal consensus - about end-of-life decisionmaking further solidified.

Keywords: end-of-life decision-making, substantive end-of-life law, guardianship, surrogate decisionmaking, PVS, persistent vegetative state, right not to be treated, advance directives

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