Like most people, I did not plan my initial involvement in Elder Law. I had taught Federal Income Taxation and related subjects for nearly eleven years when my mother began needing assistance following a series of health incidents. She passed away after six months and, as I reflected on that period, I realized that I had acquired a voluminous amount of knowledge regarding various discrete legal regimes, and that much of this knowledge would be very valuable for students to learn in a structured context. About this time, I received one of those occasional mailers from the American Bar Association touting an upcoming seminar on something called “Elder Law.” As I reviewed the contents of what was to be covered at that seminar, I realized that what I had spent the preceding half-year doing fit within this rubric and that I could create an experimental course under this title. I have taught this course continuously since that time to anywhere from twenty-five to one hundred students each time, depending upon the vagaries of the academic calendar and competing curricular alternatives. This Article explains the current content of this course and some of the pedagogical decisions involved in determining its scope.
During an emotionally charged morning of speeches at a symposium entitled Reflections on and Implications of Schiavo, Dr. Jay Wolfson asked members of the audience to raise their hands if they had ever faced the difficult decision of giving or ceasing life-sustaining medical treatment for a loved one.1 I watched as many members of the audience raised their hands. Later in the day, in a rush of guilt, I realized that the loss of my daughter, Madison Gerow, had indeed involved just such a decision, yet I had never considered her death from this perspective. Somehow, not raising my hand seemed an affront to Madison’s memory.
As one can tell from the articles prepared for this Symposium, the litigation concerning Terri’s Law and that more broadly dealing with Theresa Marie Schiavo’s “right to die” has many implications. Other participants have discussed the ways in which this epic litigation saga implicates the proper interpretation of the Florida Constitution,1 advance directives,2 and how the litigation fits into the relationship between politics and bioethics.3 For my part, I hope to make a relatively modest observation, but one that I believe has broad implications for our democratic form of government. My assertion is that the Florida Supreme Court’s decision striking down Terri’s Law4 should be seen as a significant part of the tradition by which courts serve as a bulwark of freedom. By ensuring, as the Court did here, that no governmental actor or organization obtains too much power, courts across the country and across time have been able to preserve the liberty we all possess.
The Rule in Terri’s Case speaks as much to the substance of the law as it does to the political climate that surrounds it—and does so more expressly, indeed, more openly and notoriously than is often the case in United States jurisprudence. The undercurrent of profound enmity that existed between the husband of a severely brain damaged woman and her parents and siblings combined with political and spiritual timeliness to create a perfect storm for the most volatile and litigated end-oflife case in United States history. Make no mistake about it: the Theresa Marie Schiavo case was about right-to-life and abortion as much as it was about privacy, autonomy, death with dignity, and the rights of family members. Here is the cheat sheet formula for the Rule in Terri’s Case:
The question of removing Teri Schiavo's feeding tube electrified the country in March, 2005. Florida, like most states, had adopted a substituted judgment paradigm for decisionmaking for incompetent patients. Under that approach the case appears to have been correctly decided, and should have been resolved after final review by the Florida courts. By reframing the case as one of starvation of a conscious person with a brain injury, lawyers for Teri Schiavo's parents were able to generate massive public support from right-to-life and disability rights groups. This led to additional litigation and both state and national legislative attempts to overturn the results of an on-going judicial proceeding. These events demonstrate both the strengths and weaknesses of the substituted judgment paradigm, and the power of the right-to-life movement in judicial and policy decisions at the end of life. In the end the Schiavo case will have little significance in changing the law of end-of-life care. But it does show the influence that culture of life forces will exert on the legal and policy issues raised by biotechnology.
More than 15 years elapsed between the date Theresa Marie Schiavo suffered a cardiac arrest, leaving her in a persistent vegetative state because of brain damage, and the date she took her last breath. The conflict between her parents and her husband regarding her medical care lasted for more than 11 of those 15 years. The litigation over her care lasted for more than six. It is difficult to keep track of the multiple court cases filed in Schiavo, let alone to pinpoint the highlights of their many twists and turns. It may be possible, however, to predict how the aftereffects of the Schiavo maelstrom will impact upon the law of end-of-life decision-making in Florida. This article highlights statements made during the Florida Legislature's debates about the Schiavo matter in late 2003 and analyzes what citizens of Florida might expect in terms of lingering legal effects of the Schiavo case and the storm surrounding it.
The furor surrounding the recent Schiavo case included the assertion that the Florida court was implementing a quality of life ethic that would inevitably undermine a preferable sanctity of life ethic. This paper recalls how similar assertions have continuously been made by right to life supporters ever since the Quinlan case in 1976. Those supporters have constantly claimed that surrogate end-of-life medical decisions would jeopardize the well being of vulnerable populations. This paper argues that quality of life judgments are an unavoidable part of end-of-life medical decisionmaking. The alternative is to keep pumping fluids and gases into floundering, moribund patients until the last possible breath. Notions of intolerable indignity in the dying process can be defined and administered in a sensible fashion.
The public’s view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians—one carrying a saw, another an I.V. pole—with the caption, “Coming Soon to a Sickbed Near You . . . [t]he United States Congress.”1 The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were released, pictures an elephant being examined by two physicians.2 The elephant says, “I don’t care what the autopsy says! I was right to intervene in the Terri Schiavo case and I’ll do it again if I get the chance.”3 One physician tells the other, “No hope for recovery.”4 Religious faith by definition does not depend on facts, but law and medicine do. Traditional advice to a young litigator is, “When the facts are against you, argue the law; when the law is against you, argue the facts; and when both are against you, scream like hell.”5 The case of Terri Schiavo was never about the law—the
and the Director of the Center for Law and Aging at Stetson. ** Dr. D. Dixon Sutherland is a Professor of Religious Studies at Stetson University and the Director of the Institute for Christian Ethics. 1. The term of art for this has been dubbed by the popular press as physicianassisted suicide (PAS). However, describing the requested act as a suicide has added confusion to the debate over PAS, given traditional views about suicide held in our society. Suicide has traditionally referred to someone who, because of depression or a mental condition, desires to end their life. If this individual is involuntarily committed to a mental facility and receives counseling and drug therapy, the presumption exists that the individual, after receiving help, will come back to his or her “right” mind and will no longer be a “suicide risk.” With PAS, however, the individual has a condition from which there can be no recovery, and therefore seeks the ultimate exercise of autonomy: the timing, method, and moment of death. The individual chooses control over the moment and method of death, dying in a chosen setting and with more dignity than the “normal” dying process. Recently, PAS issues have stimulated renewed consideration of the concept of suicide as a rational choice. See infra note 5. Even the Court of Appeals for the Ninth Circuit has noted the questionable apSTETSON LAW REVIEW
