|
WHAT CAN NOW BE DONE TO PROTECT
AGAINST STARVATION AND DEHYDRATION
For many years, the pro-life movement has emphasized that
providing food and fluids is part of the normal care that every human being
is entitled to receive. NRLC’s Will to Live advance directive proclaims,
“Food and water are not medical treatment, but basic necessities. I direct
my health care provider(s) and health care agent to provide me with food and
fluids orally, intravenously, by tube, or by other means to the full extent
necessary both to preserve my life and to assure me the optimal health
possible.”
Whatever their religious affiliations or beliefs, pro-lifers can only be
profoundly grateful to Pope John Paul II for his clear statement on the
obligation to provide food and fluids. As more fully reported in
Richard Doerflinger’s accompanying article,
in a March 20 speech the Pope said:
“I should like particularly to underline how the administration of water and
food, even when provided by artificial means, always represents a natural
means of preserving life, not a medical act. Its use, furthermore, should be
considered, in principle, ordinary and proportionate , and as such morally
obligatory, insofar as and until it is seen to have attained its proper
finality, which in the present case consists in providing nourishment to the
patient and alleviation of his suffering.
“The obligation to provide the ‘normal care due to the sick in such cases’
includes, in fact, the use of nutrition and hydration. The evaluation of
probabilities, founded on waning hopes for recovery when the vegetative
state is prolonged beyond a year, cannot ethically justify the cessation or
interruption of minimal care for the patient, including nutrition and
hydration. Death by starvation or dehydration is, in fact, the only possible
outcome as a result of their withdrawal. In this sense it ends up becoming,
if done knowingly and willingly, true and proper euthanasia by omission.”
(Citations omitted.)
Tragically, in the United States, ever since the mid-1980's the overwhelming
weight of court opinions, legislation, and medical practice in hospitals and
other health care institutions – including most Catholic facilities – has
been contrary to this fundamental principle. In the 1990 case of Cruzan v.
Director, a majority of the U.S. Supreme Court concluded there is a
constitutional right to reject artificially provided food and fluids. Since
that decision, the balance of new Justices appointed (Souter, Thomas,
Ginsburg and Breyer) has certainly not favored the pro-life viewpoint.
What Can Now Be Done?
First – whatever one’s religious views – the papal statement should
stimulate everyone who has not already done so to take the necessary action
to protect family members from being starved and dehydrated. Because so many
in the medical and legal fields are hostile to the provision of food and
fluids for those they deem to have a poor “quality of life,” it is essential
that everyone complete a legal advance directive specifying, among other
treatment decisions, that food and fluids be provided. The proper form for
each state may be downloaded here
Second, pro-life organizations on a local level should promptly contact
Catholic hospitals, nursing homes, and other appropriate facilities in their
area to ask what steps they are taking to bring their ethics guidelines and
facility practices in line with the papal statement on this point (complete
text
http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/march/documents/hf_jp-ii_spe_20040320_congress-fiamc_en.html).
Third comes the question of legislation. In pursuing protective statutes, we
must be both determined and realistic. In the encyclical Evangelium Vitae,
§§ 73 & 90, Pope John Paul II stated, “[W]here a legislative vote would be
decisive for the passage of a more restrictive law, aimed at limiting the
number of authorized abortions, in place of a more permissive law already
passed or ready to be voted on [,] ... when it is not possible to overturn
or completely abrogate a pro-abortion law, an elected official, whose
personal opposition to procured abortion was well known, could licitly
support proposals aimed at limiting the harm done by such a law .... This
does not in fact represent an illicit cooperation with an unjust law, but
rather a legitimate and proper attempt to limit its evil aspects. ... The
Church well knows that it is difficult to mount an effective legal defense
of life in pluralistic democracies, because of the presence of strong
cultural currents with differing outlooks. ... [T]he Church encourages
political leaders, starting with those who are Christians, not to give in,
but to make those choices which, taking into account what is realistically
attainable, will lead to the re-establishment of a just order in the defense
and promotion of the value of life.”
What the encyclical says about abortion legislation of course also applies
to euthanasia legislation. As mentioned earlier, in Cruzan v. Director
(1990), a majority of the U.S. Supreme Court stated that there is a
constitutional right to reject artificially provided nutrition and
hydration. Any bill that now sought to mandate provision of such food and
fluids, regardless of the wishes of the patient, would be struck down as
unconstitutional, and thus would be wholly ineffective– its provisions would
not be “realistically attainable.”
However, in the Cruzan case the Supreme Court did hold that a state may
require clear and convincing evidence, in the case of an incompetent
patient, that the rejection of nutrition and hydration conforms to the
patient’s wishes while competent. In short, while laws cannot override the
wishes of a competent person who knowingly and informedly rejects nutrition
and hydration, they CAN constitutionally protect incompetent individuals
from being starved and dehydrated to death as a result of choices made by
surrogates, courts, or medical institutions. Sadly, that is not now the
case. Under the law now effective in virtually every state, whenever
incompetent patients’ wishes are unknown surrogates can, and routinely do,
decide that they should not receive tube feeding.
Motivated by the Terri Schiavo case, Florida State Senator Stephen Wise has
proposed changing that by introducing S. 692, the
Florida Starvation and Dehydration of Persons with
Disabilities Prevention Act. The Wise bill creates a presumption
for food and fluids that, to be overcome, requires either a formally
executed legal document or “clear and convincing evidence that the person,
when competent, gave express and informed consent to withdrawing or
withholding nutrition or hydration in the applicable circumstances.”
A casual, thoughtless comment should not bring a death sentence. The bill
provides, “‘Express and informed consent’ means consent voluntarily given
with sufficient knowledge of the subject matter involved to enable the
person giving consent to make a knowing and understanding decision without
any element of force, fraud, deceit, duress, or other form of constraint or
coercion. Sufficient knowledge of the subject matter involved includes a
general understanding of: (a) The proposed treatment or procedure for which
consent is sought; (b) The medical condition of the person for whom consent
for the proposed treatment is sought; ( c ) Any medically acceptable
alternative treatment or procedure; and (d) The substantial risks and
hazards inherent if the proposed treatment or procedure is carried out and
if the proposed treatment or procedure is not carried out.”
The casual and indefinite statements which Michael Schiavo claimed (and the
courts accepted) had been made by Teresa Schindler-Schiavo supposedly
rejecting nutrition and hydration could not plausibly be said to have been
made with a knowledge of the medical condition in which she now finds
herself that was sufficient “to make a knowing and understanding decision”
based on the “substantial risks and hazards inherent if the proposed
treatment or procedure is carried out and if the proposed treatment or
procedure is not carried out.” Consequently, the presumption the bill
creates for the provision of nutrition and hydration would apply to her.
Similar bills could be promoted in other states. When it is medically
possible that feeding tubes or other means of medically assisted nutrition
and hydration can sustain life or provide comfort, we should – and
constitutionally can – create a legal presumption that patients should not
be denied these means and starved or dehydrated to death. With the impetus
from the widely-publicized Schiavo case and now from the Pope’s clear
statement, it is critically important to redouble our efforts to protect the
most vulnerable among us from death imposed by starvation and dehydration. |
