Terri Schiavo: My Dispute With Prof. Broyde

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My earlier posting regarding the Terri Schiavo case produced some blogging at its best: much intelligent back-and-forth between readers, several of whom clearly knew much more about the case than I did. My thanks in particular to Sholom Simon, who took me to task for faulting the judges rather than the legislators. He also led me to a wonderful source of primary source material regarding the case. Here I was able to read many of the court decisions in the original. Having now waded through both the law and how it was handled by the judges (Judge Greer in particular) I am even more convinced that there are both theoretical and practical areas in which Torah Jews should take umbrage with the approach of the judges — not just the legislators.

The best vehicle to convey some thoughts to our readers may be through the following message I received as a cc from Prof. Michael Broyde, with whom I have enjoyed a long friendship that endures despite (or perhaps because of) oftentimes sharp differences in hashkafic orientation. Rabbi Broyde should be known to most of our readers as a prolific writer on Jewish Law and professor of the same at Emory Law School. This is what he wrote an interlocutor of his:

Thank you for your kind words about me. I copy Rabbi Adlerstein on this
email as he is much wiser than I on most of these matters, and since I do
not agree with part of what he states, I want to give him a chance to
speak last. There is much of value in every email Rabbi Adlerstein
writes!

Having said that, I do not think that the Schiavo case is an important one
at all in terms of legal precedent and it is for that reason that
thoughtful commentators both on the left and the right are not really
involved (something which Rabbi Adlerstein bemoans, but which I think is
obvious, for reasons I will explain).

In America we have adopted a basic view of health care in the last 30
years in which adults get whatever medical care they want (and can pay
for, which is a different topic). Thus, almost all advanced directives a
person provides for will be honored. That politcal compromise maximized
medical freedom and allows a complex society — with very diverse
attitudes towards death — to live in peace. In a situation in which a
person does not leave a directive (a living will, for example) a person
may also leave a durable power of attorney, which says “should I be
incapable of making decisions, so-and-so (ploni almoni sounds much
better!) shall make them for me. That is fine also.

In situations where so durable power of attorney is left and no living
will is left, the courts appoint a guardian, who by tradition is one’s
closest living relative (which is a spouse, if one has a spouse). That
person makes all decisions for you and can only be removed in cases of
clear error.

Every day hundreds of people are taken off life support, deprived of
water or food or other medical decisions based on these choices and NO ONE
CASES A WIT — So long as this is what one wants, or what one’s gaurdian
wants without contest. We are already a culture (not of death, as Rabbi
Adlerstein writes) but of choice, which we — as Orthodox Jews — like.

The basic compromise is one we all want — people get to decide their own
health care and pick their own gaurdians strikes us as good and even good
for religious Jews. (It is completely unlike abortion, as the fetus has
no protections.) We just have to remind ourselves all the time to write
living wills or durable powers of attorney or take other steps to insure
that our will is followed.

The Schiavo case is ‘hard case’ as the family is fighting about what to
do, which is itself very rare. As with all hard cases, they make bad law,
and the circumstances that create them rarely will arise again. Thus,
people who wish to really make change do not fight over these cases, as
this case is just a small detail hardly relavant to the big picture.
Althougth I have not followed all of the details of this particular case,
I suspect that the parent’s case is weaker than you or Rabbi Adlerstein
think, as I read today that a total of 19 judges have examined this matter
and not a single one sided with the parents. I do not know why that is
so, but judges are a pretty diverse group and if not a single dissent was
written, it must be that given the current law, the case is clear.

Those who oppose the big picture and think we should be more pro-life,
really want to deny the right to people to chose whether to live or die.
if anything, to that group, litigating the Schiavo case will just
stregthen the hand of those who recognize that the basic right is
determine one’s own treatment, including to die if that is what one
wishes (and here we have a detail — what did this poor woman wish for?
Is her husband to be believed?).

Thus I think that this matter is not one of profound policy and I
understand why not one is taking to the streets.

Michael J. Broyde

I believe that Rabbi Broyde errs in two areas. First of all, all the evidence supports that he is the one who is wiser, better read, and of more considered opinion than I. So there.

His second error is that he writes like a law school professor, which come to think of it, he is. His main point is beyond cavil. As Orthodox Jews, our rights are best protected under the law when the medical care choices of all people are given legal standing.

As a Torah teacher involved Torah citizen, I fear that he is dead wrong. In the long run, the social climate, the context of attitudes and mores will count for more than the letter of an all too pliable law. Those attitudes will directly affect (and have for some time) the practical decisions of hospital administrators, physicians, nurses, and insurance companies. They will consciously and subconsciously affect the attitudes of people formulating their living-will instructions. When the patois of end-care givers is littered with phrases like ?quality of life? and ?burden on loved ones,? pressure mounts on older people to Do The Right Thing ? and cease being a burden. As Torah Jews, we know that this is not the way things are supposed to be.

To me, it matters little that there are really no new points of law in this case. What matters is that it has excited the public imagination, and offers us a chance to move as many people as we can ? or at least stand up and tell the world that our Torah has a different way of looking at things. (Rabbi Broyde and I have long disagreed on how loudly the Orthodox community should be shouting its values to anyone who will listen, simply to show others that possessing the Word of G-d makes a real difference.) Rabbi Broyde correctly observes that hard cases make bad law. Those of us fortunate enough to learn Gemara, however, are struck by the overabundance of hard cases in the Talmud. It would not be unfair to say that choosing hard cases is the modus operandi of the Talmud. In viewing the law stretched to its capacity we are best able to test its mettle. If the hard case of Terri Schiavo piques the public interest, and shows us that there is something lacking in the formulation of the law, then perhaps we can do something about it.

The discussion is long and complex, and beyond the capacity of a midnight posting. I will limit myself to one element ? a critical one ? in the behavior of the judges that runs afoul of my sensitivities as a halachic Jew.

In the final analysis, all the legal wrangling amounted to challenges to the original opinion of Judge Greer

Terri Schiavo did not leave a written medical directive. By Florida statute, the court (or an appointed guardian) must then use oral declarations to others to form a kind of substituted judgment about what the incapacitated patient would want.

Judge Greer affirmed that the law places a high standard in determining that life-giving support should be withdrawn. When there is doubt, the court should err on the side of life. Yet, to Judge Greer it was abundantly clear that Terri Schavio would choose to be withdrawn from her feeding tube. He ruled on the basis of several completely theoretical conversations Terri had with her husband?s brother and sister-in-law, about which he could find ?nothing ?to be unreliable.?

I have grave reservations about the reliability of testimony of close relatives of a man whose own motives were at least shrouded in doubt, and who stood to gain financially from the outcome. These doubts are amplified by the fact that Judge Greer essentially used the testimony of the Director of Georgia Health Discoveries to explicate some of Terri?s phraseology as ?the type of expressions made in those types of situations as would be expected by people in this country in that age group at that time.? In other words, the expressions reported by the witnesses match the kind of things that other people say when talking about end-of-life alternatives; ergo, they should be taken seriously. I can think of tighter logic. (An Appeals Court was also uneasy about this, but didn?t find it a serious enough lapse.) Judge Greer was also discomfited by the fact that the relatives waited a long time to come forth with their crucial testimony. He wasn?t worried enough to doubt his judgment, however.

Besides all this subjective fuzziness, there is one fundamental flaw in Judge Greer?s approach from the standpoint of Jewish Law. Dealing away one?s life should not be accomplished any more easily than signing a commercial contract. One of the most important Jewish Law rules about the latter is that any agreement is only as strong as the gemiras daas, the determined mind-set behind it. In halacha, people are simply not bound by off-the-cuff remarks, promises, commitments etc. There is good reason why we ask that decisions be formalized by a kinyan, by a ritualized activity that forces a person to make a clear, irreversible decision. Anything less just doesn?t count.

Moreover, Jewish Law generally maintains that there are decisions for which even a kinyan is insufficient, because people simply cannot understand or focus upon the issues when they are in an incompatible state of mind. (Decades ago, the Conservative movement proposed a number of ?solutions? to the problem of couples divorcing without securing a kosher Jewish get. One of these contractually called for every groom to delegate an agent to write a get on his behalf, in case of a future dissolution of the marriage. One of the many reasons that this cannot work is that a groom under the marriage canopy cannot take seriously the eventuality of this future divorce. Similarly, the contract drawn up with a surrogate mother to surrender her baby at birth has no validity.)

When people see the indignity and helplessness of end-term patients, almost everyone thinks or says, “I don’t want that happening to me.” Yet hospice workers report how patients facing their mortality in a hospital bed rethink the living-will instructions they drew up years earlier. When are forced to face their deaths not theoretically but imminently, they very often grasp at life itself, with quality or without. Death, seen from up-close, proves to be a less attractive proposition.

One does not have to be particularly insightful to realize this. If Florida statute in fact sets a high bar for terminating medical intervention, the casual, visceral and emotionally charged conversations of years before should not be dispositive. If a judge rules that they are, we have good reason to suspect that he is in the grips of a “culture of death,” not a “culture of choice” as Rabbi Broyde would have it. Convinced that life without quality is both meaningless and burdensome, it becomes much easier to accept some casual remarks of years before as giving society the green light to Do The Logical Thing and bow out of life.

As Torah Jews, we should be appalled by this thinking. Apparently, significant numbers of Americans intuitively feel the same way. I cannot help but think that the case is indeed a watershed one, even if the issues seem more emotional than legal. If those emotions have been stirred in some Americans, then Torah Jews ought to be helping them put them in a framework of reason, and at least attempt to set the high bar of making life-and-death decisions back to where it is supposed to be.

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9 Responses

  1. Patricia Voss says:

    Earlier today, before I knew of the Sciavo outcome, I was pondering how I have had to take a test for certain diseases each time I have been pregnant. My statement that I and my husband are faithful to one another is insufficient in an era of permissiveness. I wonder what changes this new attitude may cause that we cannot now anticipate.

  2. MP says:

    Sholom noted, “The comment of ’19 judges unanimously ruling’ was made before the 2-1 panel.” Yes, I realized that was probably the case a bit after posting the comment.

    Today, re an unrelated matter, someone brought my attention to

    Quoth Zev: “how does that explain the judge’s order that she may not be given food or water by mouth?”

    I am not a doctor, but as I understand it, you only put a feeding tube in a patient who is incapable of swallowing, and therefore, anyone putting food or water into her mouth would be hastening her death (by suffocation), not delaying it.

    “Are you aware that she is being constantly guarded by police to ensure that her family will not moisten her lips with a bit of water, for fear this might delay her death?”

    If Mrs. Schaivo would not have wanted her life prolonged in her current state with a feeding tube, then kal vachomer, she would not have wanted her parents moistening her lips.

  3. Sholom Simon says:

    Zev asks: “Since when is spoon-feeding considered artificial life support?”

    That has nothing to do with the question that I answered that Moshe Schorr asked. Mosche Schorr asked about feeding tubes.

  4. Zev says:

    “I can only guess that because this is a tube which actually went through her abdomen directly through a wall in her stomach, it is considered, under statute: “artificially provided sustenance and hydration”

    And how does that explain the judge’s order that she may not be given food or water by mouth? Are you aware that she is being constantly guarded by police to ensure that her family will not moisten her lips with a bit of water, for fear this might delay her death? Since when is spoon-feeding considered artificial life support?

    The horrifying fact is that the woman is being cruelly murdered by the state before her parents’ eyes, and there’s not a thing anyone can do about it.

  5. Sholom Simon says:

    Moshe Schorr asked: “Since when is a feeding tube considered an “ARTIFICAL Life Support”?”

    My answer, without espousing any position here, is that Florida statute includes, as its definition of “life-prolonging procedure”, as “any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration…”

    I can only guess that because this is a tube which actually went through her abdomen directly through a wall in her stomach, it is considered, under statute: “artificially provided sustenance and hydration”

  6. Moshe Schorr says:

    Since I live in Israel, I was not too aware of this case till very recently. Now it is very much on my mind.

    I am not a lawyer not a medical profession so I will perforce talk from the gut.

    Two points.

    1. Since when is a feeding tube considered an “ARTIFICAL Life Support”?
    2. Your comments about what this case will do to the “atmosphere” is very cogent and important. There is a reason that groups of disabled people are very concerned about this case. They are very worried that not too far down the line, _their_ lives will be decided by judges using such laws. That’s frightening.

  7. Sholom Simon says:

    The comment of “19 judges unanimously ruling” was made before the 2-1 panel. So, now the count is 21-1. (The 2-1 split was really a split over the propriety of an injunction, but not on the merits of the case necessarily).

  8. MP says:

    By Florida statute, the court (or an appointed guardian) must then use oral declarations to others to form a kind of substituted judgment about what the incapacitated patient would want.

    If Florida statute in fact sets a high bar for terminating medical intervention, the casual, visceral and emotionally charged conversations of years before should not be dispositive.
    Rabbi Adlerstein, do you not see the contradiction?

    Perhaps this phrase is machria:
    I am even more convinced that there are both theoretical and practical areas in which Torah Jews should take umbrage with the approach of the judges – not just the legislators.
    Judges are human beings attempting to make sense of and work with the laws as they are written. Nothing you’ve posted leads me to agree with your overall criticism of their work.

    Thank you for noting the opinion of my good friend (and classmate) MJB (not to be confused with a favorite YU teacher, Dr. MJB). Tangentially, he wrote one phrase with which the facts might disagree:
    I read today that a total of 19 judges have examined this matter
    and not a single one sided with the parents…if not a single dissent was
    written

    Wasn’t there at least one three-judge panel which split 2-1 in deciding against the parents? No great harm to Michael’s point in noting that the judicial decisions haven’t been unanimous – on the contrary, it bolsters his “judges are a pretty diverse group” point.