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Beyond the Columns

bc law dean john h. garvey

The Quality of Debate
The Lessons of Terri Schiavo and John Stuart Mill


John GarveyI may be the only person in the United States who doesn’t know what to make of Terri Schiavo’s case. It’s not that I haven’t thought about it. I just can’t muster the same level of certainty I heard on both sides of the debate. People discussing these issues in the political arena have to highlight and simplify to win the public over.

For someone in my befuddled state, the university is a more congenial environment. We can take our time, look at all angles, and attend to nuance in our effort to find the truth. That’s the luxury of academic freedom.

Terri Schiavo suffered a cardiac arrest in 1990. She sustained brain damage and was left in a persistent vegetative state, supported by artificial nutrition and hydration. The legal controversy began in 1997 when her husband initiated proceedings to withdraw life support. Schiavo’s parents resisted. Florida law permits withdrawal if it can be proven by clear and convincing evidence that this is what Terri would have wanted.

After elaborate proceedings, the Florida courts ordered removal of food and water. The Florida legislature tried (unsuccessfully) to overturn that decision. Then Congress tried (unsuccessfully) to get the federal courts to undo it. On March 31, Schiavo died. I can’t remember a case since Bush v. Gore getting this much legal treatment. And perhaps it should have. It’s a matter of life or death. Nearly all of us have seen someone we love on life support, or can picture ourselves there. And it’s very hard to know what to do in such cases. You wouldn’t have thought that to hear the partisans in Schiavo’s case, though.

Cultural conservatives, siding with the parents, saw this as a simple right-to-life case. The analogy has some appeal. We’re talking about terminating the life of an innocent human being who can’t think or act for herself, and whose care is a burden to us. As in abortion cases, the courts seem more eager to end life than the elected branches.

But even for someone (like me) who is dead set against abortion, this is harder. We are not obliged to do everything we can to preserve life. If Schiavo were my child, I might forego medical intervention if it were burdensome or dangerous. If she were my grandmother, I might not do things I would try on a younger person. I have a different moral sense about feeding tubes today than I did twenty-five years ago, before the percutaneous endoscopic gastrostomy (PEG) procedure was introduced. It’s a lot safer and easier than it used to be.

Cultural liberals were equally adamant that Schiavo should die. Congressional intervention, they said, was inconsistent with the idea of federalism. Once the Florida courts decided the case, we should have let it rest. They had a point here, though it didn’t go to the merits. (And the left has not usually cared about federalism, so it seemed insincere.) The more powerful argument was that medical decisionmaking should be a private matter and not the government’s business. This is an argument the left makes in favor of abortion. There are two problems with invoking it here. One is the lack of consensus on the right to privacy—people are as uncomfortable with suicide and euthanasia as they are with abortion. The other is that even if we had consensus on the right to privacy, this is a case where the government has to decide. Schiavo can’t speak, and because we have two versions of what she would want (her husband’s and her parents’), a court must choose for her.

I think there is a convincing answer for this kind of case. I’m just not sure what it is. This is the kind of problem that makes me think fondly of John Stuart Mill’s essay “On Liberty.” There are passages I don’t agree with, but I heartily endorse the chapter about liberty of thought and discussion. Mill argued for this not because he was a skeptic or bienpensant, but because it served the cause of truth. And the argument in “On Liberty,” though directed at freedom of the press, works just as well for academic freedom:

[T]he peculiar evil of silencing the expression of an opinion is that it is robbing the human race . . .—those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.”