22 March 2005

Thy Will Be Done

Which of the following best characterizes your position on the Schiavo melodrama?
  • "Terri never wanted to live like this (and I know this although I never met her personally and have no real inkling what she herself wanted) and we should let her die in peace (by peacefully starving her to death, something which the Eighth Amendment and my own sense of non-denominational moral outrage would not permit me to do to a convicted murderer)."
  • "Terri's life is precious (even though the undisputed evidence and medical diagnoses in this matter all indicate that she is unaware that she is still technically alive) and we must keep her alive at all costs and against the instructions of her husband (although the vast majority of those costs are borne by programs which I believe should be cut from the budget and, except in this instance, we should never interfere in the marital relationship within which a spouse is presumed to know and to act in furtherance of the other's deepest wishes)."
  • "I know nothing about the Schiavo matter, and despite that have no opinion." (Once again, Eugene Volokh shows us the way.)
  • "This poor woman's life, such as it is, should not be a political football for Tom DeLay to kick around to distract the public and his remaining supporters within the Republican Party from the ongoing ethics inquiries against him."
  • "This woman's life, such as it is, should be a political football for me to kick around to distract the public and my remaining supporters within the Republican Party from the ongoing ethics inquiries against me."

Regardless, the one lesson which we all can take away from this sordid interlude is that quality- and end-of-life issues are matters best decided by individuals and ensured by those individuals' actions, rather than the actions of their relatives, the courts, the government, and various and sundry interest groups.

The Supreme Court recognized in the 1990 Cruzan decision that competent people have a liberty right under the Due Process Clause of the Bill of Rights to refuse unwanted medical treatments. The Court found that the longstanding common law position that "informed consent is generally required for medical treatment" necessarily implied a corollary right not to consent and thereby to refuse medical treatment, but that such a refusal must be demonstrated by clear and convincing evidence of the patient's wishes. For a conscious person in full control of his or her faculties, making those wishes known to treating physicians suffices; where, as in Ms. Cruzan's and Ms. Schiavo's cases, a patient is not able to make decisions or to make those decisions known at the time of treatment, the matter becomes more problematic. If demonstrated prior to incapacity, a patient's own wishes may be followed; if not so demonstrated, the decisions of a guardian or other authority will control.

Commonly referred to as "Advance Directives", several ways exist to establish your medical treatment wishes before any need for such treatment arises. Chief amongst these are Living Wills and Durable Powers of Attorney for Health Care. A Living Will is used to describe your decisions whether to receive certain types of treatment, such as artificial respiration or nutrition and hydration. A Durable Power of Attorney for Health Care is used to designate and appoint another person to make certain health care decisions on your behalf at such time as you are unable to do so.

Note, however, that the availability and applicability of these directives may vary from state-to-state. Depending on local laws, these directives may be prepared singly or in conjunction with one another or other documents in order to fully-describe your treatment decisions. Provided that you have and are able to demonstrate the capacity to do so, advance directives may be changed at any time. Although it may be advisable to consult an attorney to ensure that your directives are properly prepared, forms and software are available online to assist you; forms are also generally available from hospitals prior to non-emergency treatment.

Regardless what your beliefs may be concerning life-sustaining health care, the need to consider and make health care decisions for yourself is clear. Make your decisions and make them known to your family, but rest assured that if you choose not to make these difficult decisions for yourself, Tom DeLay is happy to do so on your behalf.


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