The U.S. House approved legislation Wednesday night that would allow cases such as the one involving mentally incapacitated Terri Schiavo–who faced a court order authorizing her death by dehydration and starvation to begin last Friday–to be removed to federal court.
That court would decide if the disabled person’s constitutional rights–including the right to life–were being accorded due process of law and equal protection.
In the Senate last night, Democratic Sen. Ron Wyden (Ore.) opposed giving federal court access to all persons like Schiavo. So, the Senate passed a bill applying solely to Schiavo–leaving the issue unresolved as the House had already left for its two-week Easter recess.
Just before the bill came up in the House, HUMAN EVENTS Editor Terence Jeffrey discussed it with Rep. Dave Weldon, a medical doctor who was the leading force in the House on this issue.
Do you believe it is ever permissible for a doctor, a nurse, a judge or anyone else to kill someone by starvation or dehydration?
WELDON: No, I don’t. However, I think there are situations where continuing to supply food and water is prolonging the dying process and that it is appropriate not to continue to do that. But that is a very fine line, and you have to be very, very careful, and you have to really make sure that what you are doing is ethically and morally correct.
A good example is somebody who is brain dead after a car accident, who has a flat-line EEG. To put a gastrostomy feeding tube in that person is perhaps not the best thing to do for the family at that point.
Now, you’re describing a different act from one specifically intended to kill the person.
WELDON: Right. Where I felt comfortable withholding food and water was typically in a flat-line EEG situation, and typically, you would want to get two flat-line EEGs, and you would want to have a neurological exam consistent with cortical death. Or in very advanced elderly people with very advanced illnesses and no hope of recovery. Somebody dying of cancer, in advanced years, who has had a long protracted illness, you don’t go putting a feeding tube in somebody like that.
The way I would always describe that with my patients, and specifically usually at that point it was with their families, is we are not prolonging life, we are dragging out the dying process. In that situation, I thought it was morally and ethically appropriate not to continue to give food and water through an artificial device. Now, if they are asking for a sip of water they are capable of swallowing, then you most certainly need to do that. But to intervene artificially and put a feeding tube in somebody who is riddled with cancer and advanced in years and is dying to me was–
To introduce the tube, as opposed to taking a tube out that was already there?
If a person is lying in a bed dying of cancer there’s really no reason to dehydrate them is there?
WELDON: No. Typically, the direction you would want to go in at that point is maintaining patient comfort. Sometimes that did entail modest hydration using an IV line or giving them liquid to drink if they are capable of swallowing.
Leaving aside the nuances of that situation, shouldn’t there be a bright line between questions of when a particular act represents extraordinary treatment to someone who has a terminal illness–which is one side of the line–and taking a deliberate act intended to kill a person–which is on the other side of the line?
WELDON: Right. Now, the latter that you were just describing to me was something that I never participated in.
In the specific case of Terri Schiavo, her physical therapy was discontinued in 1993. It is not clear to me whether or not she can be trained to swallow again. I don’t know if it’s been documented in the clinical record that she can or would respond to some forms of therapy. So to make a decision to withdraw food and water in a situation like that–where we have a person who is responsive to voices, who emotes–to me is reprehensible.
Terri Schiavo does not have a terminal illness and is not dying.
What is the difference between Terri Schiavo, who needs someone to provide her with food and water, and a newborn baby?
WELDON: You’re getting into some great issues here. In the case of a newborn baby where this issue comes up is babies born with very severe birth defects–
Right, but then isn’t someone making a subjective determination about the quality of life of that other person, whether it’s Terri Schiavo or a newborn? In other words, the doctor, the court, the parent or the husband is deciding, ‘I don’t like the quality of life of this other person; therefore, I am going to actively seek the termination of their life.’
WELDON: Right, and that is a very dangerous thing to do. I used to approach all of these situations–and I’m not a pediatrician, I was an internist and I never got involved in pediatric cases–but the question that you have to ask in these cases is, am I intervening using technology in a way that is going to prolong suffering or am I prolonging life.
But is a feeding tube really ‘technology’? It’s not advanced science.
WELDON: No it’s not. But it is in the sense that it was not available to us a hundred years ago, so we would never have discussions like this. A person couldn’t eat, couldn’t drink, they would dehydrate, they would die. And that was the end of the conversation.
But once upon a time, man, trying to feed himself, would be running around with a stone axe trying to throw it at a wooly mammoth or something. Now, we have people on distant ranches who grow cattle for us that we never see until they show up at the local grocery store. This isn’t really a case of extraordinary technology being used to extend the life of Terri Schiavo?
WELDON: No. It’s really elementary. She’s got a little hole in her anterior abdominal wall and there’s a little tube that goes through it directly into her stomach. It’s like an outpatient procedure. You do it under local anesthesia. We used to call them peg tubes when I was putting these things in. Nor is it particularly costly. You can administer just pureed food. You don’t have to give these expensive nutritional supplements. And it’s certainly sustainable within a reasonable budget of her medical malpractice settlement.
Isn’t it true that any person out there in Terri Schiavo’s condition should be protected from someone else being able to decide they should be starved and dehydrated to death?
WELDON: Correct. That’s why I wanted to pursue this type of habeas corpus relief and get it established in law so that if cases like this arise again there would be an avenue for federal review. The laws of the nation are really founded on the Declaration of Independence, which states that we are endowed by the Creator with certain inalienable rights, and included in that is the right to life. Her right to life is being denied at this point, and I feel that warrants a federal review. And that is why I pursued a legal remedy.
What would your original proposal co-sponsored by Sen. Mel Martinez have done?
WELDON: Terri Schiavo is not named in the bill. It would have generally allowed a habeas corpus review in the following setting: You have to have an incapacitated person with no written advance directives, you have a dispute amongst the parties with standing before the court, and you have a disposition from a judge to withdraw food and water. In that case a habeas petition in federal court would be allowed.
What would be the question before the court?
WELDON: Whether her constitutional rights are adequately protected, including her right to life.
Your particular idea that goes directly to the Constitution has been put aside for the moment, and new legislation has been crafted that takes a different angle?
WELDON: Yes. We have an alternate proposal coming from House Judiciary Chairman James Sensenbrenner that uses a different statute. Rather than habeas corpus, which is in the Constitution, it uses the Removal Act, which is Chapter 89 of Title 28 of the U.S. Code, which allows removal of certain cases from state court to federal court to protect the constitutional rights of people.
Do you expect that the President would expeditiously sign this bill?
WELDON: Mr. Sensenbrenner has developed this alternative remedy in discussion with people in the Justice Department. So, I have to assume that the President will be disposed to this legal remedy.