34 Pages Posted: 25 Jan 2006
This symposium paper for the Temple Political and Civil Rights Law Review describes and evaluates state legislative proposals following the controversy surrounding the removal of Terri Schiavo's feeding tube. Proposals to alter end-of-life decision-making standards have been introduced in at least twelve state legislatures. They appear designed to address the following perceived problems with the law that was applied in Ms. Schiavo's case: (1) concern that the evidence regarding Ms. Schiavo's wish to refuse treatment was weak or insufficient; (2) concern that despite family disagreement over the proper course of action, life-sustaining treatment was withdrawn; (3) frustration over the limited role for government officials in challenging the court decisions to allow the feeding tube to be removed; and (4) concern that the removal of feeding tubes causes individuals to starve to death. The proposals either require stronger evidence (such as a writing) of a patient's wish to refuse artificial nutrition and hydration than is required by existing law or prohibit the removal of artificial nutrition and hydration when family members disagree. Many of the proposals provide for an enhanced role of government officials in challenging the removal of life-sustaining treatment.
In the main, supporters of these proposals have justified them as providing patients needed protection from surrogate decisions that do not accurately reflect patient choice. They are hailed in large part as protecting, rather than limiting, patient choice. This paper argues that they would in fact accomplish the latter, that a stronger presumption in favor of life is purchased at the expense of patient liberty. Moreover, there is good reason to believe that supporters of these changes to end-of-life law have a different agenda in mind altogether - to change the culture surrounding end-of-life decision-making so that, while the law may still allow people to direct that treatment be refused, more people will choose treatment, and thus life, than do now. Thus, the National Right to Life Committee's draft model act (introduced as legislation in a number of states) must be considered together with its Will to Live document, a living will-type document designed for individuals to express their wishes in favor of continued life support, particularly nutrition and hydration. The calls for legislative change together with the drive to encourage people to execute the Will to Live are evidence of what the author terms a larger movement against starvation, in which patient choice, patient interests, and the interests of families are severely subordinated to the preservation of life.
Keywords: schiavo, end-of-life, living will, starvation, dehyrdration, will to live, right to life, patient choice, liberty, permanent vegetative state, advance directive, life-sustaining treatment, nutrition, hydration, life-prolonging treatment, persistent vegetative state, right to die, cruzan
Suggested Citation: Suggested Citation
Shepherd, Lois L., State Legislative Proposals Following Schiavo: What are They Thinking?. Temple Political and Civil Rights Law Review, Vol. 15, 2006; FSU College of Law, Public Law Research Paper No. 193. Available at SSRN: https://ssrn.com/abstract=877340