Thursday, February 24, 2005
Right to Die?
At the risk of opening up a huge can of proverbial worms, I am going to attempt to tackle the two thorny "right to die" (admittedly, I don’t like this label that has been given to this issue as it, in my opinion, is nothing more than a rhetorical phrase that is wholly devoid of signifigant meaning, but since it has become the commonly accepted label I will use it albeit as sparingly as possible) issues that have received notable news attention in the last several days. I fully understand that this issue is charged with legal, emotional, religious, philosophical and other points of view, but I will do my best to stick to my so-called area of knowledge, i.e., the law.
First, the Terri Schiavo case that has re-emerged on the national scene. Speaking strictly legally, this case is pretty simple and really doesn’t raise a lot of unique issues. The relevant legal facts, in my opinion are these, Mrs. Schiavo is married and was involved in a major accident some 10 years ago, the result of which has placed her in a medical condition that requires her to be fed through a feeding tube. Mrs. Schiavo left no "living will" or other legal document that dictates what her wishes with respect to "life support"or other medical treatment is and currently is unable to effectively communicate her present desires to anyone. As I understand things, the law here is quite clear, by virture of her marriage, Mr. Schiavo is the "next of kin" and as such is authorized to make any and all decision on behalf of his wife. The fact that the parents and Mr. Schiavo disagree about what that decision is, while unfortunate and heartbreaking, is nonetheless not really relevant, since the law gives Mr. Schiavo and not her parents the legal authority to make the decision.
Some advocates of the parents point-of-view have attempted to argue that Mr. Schiavo could (and should given his new "relationship" and subsequent children) get divorced and turn Mrs. Schiavo back over to her parents who would of course continue the medical treatment. However, unfortunately, I don’t think that this is an option pursuant to Florida law. In most states that have adopted "no-fault" divorce statutes, divorce, like marriage is a consensual action. In other words, both parties have to agree to get a divorce. While usually consent isn’t difficult to obtain, it is nevertheless required. Mrs. Schiavo is, due to her condition, unable to consent to the divorce and, to my knowledge, left no legal document giving legal authorization (usually in the form of a power of attorney) to anyone that could consent to the divorce. Now, even if Florida has preserved a "fault" divorce system, and Mr. Schiavo by virtue of his actions qualified, on say, adultery grounds, it still may not be possible to obtain a divorce, because Mrs. Schiavo is the only person who would have the necessary legal standing to initiate the court proceeding required to obtain the divorce. Moreover, Mr. Schiavo also appears incapable of first obtaining a declaration of death for the purposes of obtaining a divorce, because as we are all aware, Mrs. Schiavo is not dead, but rather is severely incapacitated.
Hence, we appear to be back to the original proposition, which is that given the marriage, Mr. Schiavo, like his decision or not, has the legal right, absent any legal instrument to the contrary, to make medical decisions for his wife. No court decision that has come to any other conclusion has been upheld and intrusion by the other branches of government has been overturned as a violation of separation of powers. As I have said, a sad, tragic story, but ultimately not a difficult legal issue.
The second situation, however, involving the State of Oregon’s Death with Dignity Act, presents many different issues and is a much more difficult legal case. This case presents a potential conflict between the validly enacted Oregon state statute and the federal Controlled Substances Act (CSA), which regulates the narcotics used by doctors in terminal cases. Of course the actual question that the Supreme Court will decide next term arguably ducks the "federalism" issues presented by the case and renders it essentially a statutory construction case, the policy/philosophcal questions about the role of the government, state or federal are still interesting and should be worthy of discussion.
Because I have rambled on long enough, I’ll simply say this, while it is clear from the Supreme Court's decision in Washington v. Gluksburg, that the Constitution affords no "right to die" that decision in no way precludes the State of Oregon from doing exactly what it did and enacting a statute regulating the area. Again, agree or disagree with the state’s decision, (which by the way was made in the truest of democratic fashions, via public referendum, meaning that this measue was not enacted by elected representivies in the legislature, but rather by the people of Oregon directly) their authority to make it is, in my opinion, unchallengeable. Whether the CSA has any bearing on the state’s ability to effectively execute the statute is another question, but since my theme and focus here has been on legal authority, it appears fairly clear that Mr. Schiavo and Oregon have at least that much in common, i.e., they both have the legal authority to make the decisions they have made with respect to the "right to die," regardless of whether anyone agrees or disagrees with their choices.
