THE TERRI SCHIAVO CASE
APRIL 1, 2005

By Rabbi Gershom Barnard

Although Terri Schiavo died yesterday in Florida, two weeks after her feeding tube was removed, the issues involved in her sad case, as well as the feelings which they stir up, are still very much with us. I want to discuss some of the ethical issues of the situation, and then I have two forward-looking points to make.

First, I want to address the relevance of our halakhic tradition to the case. Obviously, Terri Schiavo was not Jewish, nor are any of her relatives, so Jewish religious law does not directly, literally, apply to them. However, while some Jewish laws, like the laws of tefillin, have no application outside the Jewish sphere, others, which express general moral values, should guide us as we consider various situations. Matters of life and death are clearly in the latter category.

The general Jewish teaching on the subject is, first, that life, and saving and preserving life, are among the highest of our values. In Deuteronomy 30, we find the phrase which could be our watchword, “Uvaharta bahayim,” “Choose life”. In Leviticus 18 is another phrase, which serves as a touchstone for the interpretation of other Jewish laws, “Vahay bahem,” “You shall live by them,” to which the rabbis in the Talmud added, “V’lo sheyamut bahem,” “And not die by them”. Also from the Talmud is the value “pikuah nefesh,” saving (literally: uncovering) a life,” which overrides almost everything else in Judaism. The main Jewish answer to illness is medicine. However, as strong as this pro-life thrust is, it is not absolute. Jewish law and tradition recognize that, in certain extreme cases, one may refrain from using certain medical means of keeping someone alive, and possibly even stopping some ongoing treatments. Where things get complicated is determining which circumstances are extreme and which medical measures may by withheld or withdrawn.

In Conservative Judaism, there are two recognized approaches to the subject. They are represented by two teshuvot accepted by the Committee on Jewish Law and Standards of the Rabbinical Assembly in 1990. One, written by Rabbi Avram Reisner, who was our scholar-in-residence last year, makes use of the traditional concept of “goses,” one who is on the point of death. I must emphasize that a goses is not someone who is, as we say, “terminally ill.” A goses is someone who is going to die very soon. The usually accepted time frame is 3 days. The basic law is “a goses is like a living person in every respect,” and it is forbidden to do anything which would hasten his death. Thus, active euthanasia is definitely forbidden by Jewish law; all traditional authorities agree on that point. However (and this is where the opening is), it is permitted to remove a factor which is preventing the person from dying (and, by implication, to refrain from doing something which would stop the person from dying).

The second teshuvah, written by Rabbi Elliot Dorff, who spoke at our synagogue several years ago, makes use of a different concept with regard to one who is terminally ill. When I first read the two teshuvot, I think that I was shocked by Rabbi Dorff’s term, because of its associations, “t’refah”. However, in the Talmud, the word is used to apply, not only to animals with certain injuries, but also to people who are certain to die – the time frame in this case is one year. Rabbi Dorff shows that there is Talmudic precedent to say that, to turn another Talmudic saying on its head, some people’s blood is not as red as others.’

The second main difference between Rabbi Reisner and Rabbi Dorff has to do with what is considered an impediment to dying. Both agree, for example, that one may forego surgery or other aggressive medical treatment if it will probably “not produce remission or recovery”. Both agree that one may forego or withdraw mechanical life support if it offers no reasonable chance of return to unaided functioning. However, according to Rabbi Reisner, one may not ask for such large doses of pain medication that they bring a risk of death of greater than 50%, whereas, according to Rabbi Dorff, only a dosage that will bring certain death is out of bounds. (Incidentally, at a program on Jewish Medical Ethics and the Terminally Ill, given at Cedar Village, which I attended, the presenter, Dr. Barry Kinzbrunner, a VP of VITAS Hospice Care, cited research to the effect that even doses of morphine, when well managed, do not necessarily hasten the death of patients who receive it, so there may be a way out of that dilemma.) Especially relevant to the Terri Schiavo case, Rabbi Dorff considers all artificial hydration and nutrition of the terminally ill to be impediments to dying. Rabbi Reisner generally considers them to be necessities of life (although, looking at the whole range of his statements, he is equivocal on the specific issue of the feeding tube).

To come to the concrete point, Terri Schiavo was certainly not a goseset, and she was not a t’refah when she had the feeding tube, although she apparently was when the tube was removed. Conservative Jewish observers have generally said that, according to Dorff, letting her die was all right, while, according to Reisner, it was not. In general, I am more in sympathy with Rabbi Reisner’s approach. It is more conservative (with a small “c”) and it fits better with the pro-life values which I stated at the outset. On the other hand, Rabbi Reisner’s approach could leave people lingering on in horrible states ofr a very long time. That is less likely to occur with Rabbi Dorff’s approach, but the problem with his approach is that we are liable to go down a slippery slope towards failing to care for people in less extreme situations. Indeed, advocates for the disabled have agitated in favor of keeping Terri Schiavo alive.

In general, I tend to agree with Reisner, but, with regard to Terri Schiavo, my intuitive reaction was to agree with Dorff. Even if one could argue that, technically, Terri Schiavo should have been kept alive indefinitely with a feeding tube, I could not bring myself to say that. The contradiction is a problem, but we all live with various contradictions in our lives. We try to resolve them over time, but we never succeed 100%. (There is a traditional Jewish saying, tsarat rabbim – hatzi nehama, so I can take some consolation from the fact that Rabbi Joel Roth of JTS said, with regard to the original two teshuvot, that he agreed with Rabbi Reisner in theory but with Rabbi Dorff in practice.)

I would like to slice their opinions a little thinner, however. Halakha makes a distinction between starting a new procedure and stopping a procedure that is already going. Rabbi Dorff wrote, last week, that the feeding tube never should have been attached. Whether that is true would depend, among other things, on Ms. Schiavo’s condition 15 years ago. However, it was inserted, and I can say that maybe it should not have been removed two weeks ago, but that, once it was removed, it was right not to replace it.

Another aspect of the case is the proper assessment of Terri Schiavo’s medical condition. I have based everything that I have said and written (for the Israelite), and my thinking, on the assumption that she was in a persistent vegetative state. I see her parents’ denial of that assessment as an understandable reaction, but a delusion nevertheless. That some doctors said otherwise doesn’t move me. Especially in such a highly charged atmosphere, there is nothing so far-fetched that you will not find a doctor (or a rabbi) somewhere who will say it. Nat Hentoff, no right-winger, wrote in the Village Voice a fierce challenge to the prevailing view. I worry about this issue, because, to put it crudely, if you gave Terri Schiavo a little bit more brain activity, I would be on the other side. However, I don’t really have sufficient reason to dissent from the prevailing view.

Now, it is significant that the teshuvot of Rabbis Reisner and Dorff resulted in a Conservative movement document, a Chinese menu Advance Medical Directives form, with two columns, one for each opinion. When I have been talking about medical choices in general, I have been assuming that the patient himself is making the choices, either on the spot or through advance directives. Terri Schiavo did not give such unequivocal indications of her wishes. In both Jewish law and civil law, the next person to turn to would be, for a married person, his or her spouse, and that is, of course, what happened. Whatever Michael Schiavo’s character may be, or whatever the state of his marriage may have been, he was the person to make the decision. Again, there are disputes about what Terri Schiavo’s real wishes were. I am assuming that Michael Schiavo was in the best position to represent them. If there were some significant evidence to the contrary, then I would be on the other side.

In any case, however, such a right to make a decision cannot be regarded as absolute. Husbands do not own their wives, as parents do not own their children. Both in Jewish terms and in civil terms, society, acting through its various institutions, has a right and a duty to intervene to protect the weak and vulnerable, those liable to be victimized by others. The first institutions to which one would turn are the courts, rabbinic or civil. However, remembering that we are dealing with matters of life and death, we cannot be satisfied with formal legal correctness. Pikuah nefesh overrides the separation of powers. As it is, I believe that the various courts which considered the case, from the Pasco-Pinellas Circuit Court to the US Supreme Court, acted correctly, and that the brothers Bush and the US Congress were misguided in their efforts to intervene. However, if we had a different case, one of clear medical and spousal neglect or abuse, then I would see the weight of argument as being on the other side.

Terri Schiavo is gone. I would like to conclude with two main points. The first is that we should all prepare advance medical directives. I favor the Conservative movement’s form, because it embodies our religious values. However, the form as it was printed in NY did not meet all the requirements of Ohio law. I have had it reviewed by a local attorney, and I think that I not have a usable Ohio version of the Conservative form. In any case, we should certainly use the movement’s form as a guide in preparing our own directives.
Second, there ought to be a liberal pro-life movement in this country. As you can tell, my position on this issue is full of uncertainties and qualifications. The part that I feel most confident about is the opening “pro-life” statement. Many people have said that the Schiavo case has been used as a political tool by right-wing elements. That judgment is obviously partisan, but it has some truth to it. To the extent that it has truth, that is in part because liberals have yielded the “pro-life” language to conservatives.

I believe that liberals should be pro-life, in our own terms, as Judaism is certainly pro-life. I want to mention in this connection three people whose statements have impressed me in this area. The first is the late Joseph Cardinal Bernadin, who was archbishop of Cincinnati before leading the Chicago archdiocese. Cardinal Bernadin spoke of the “seamless web,” of advocacy of life, which includes opposition to abortion and to capital punishment, and promotion of social policies which help the most vulnerable. I disagree with the Cardinal on the matter of abortion, because I believe that abortion is sometimes morally justified and that, in the United States, it should be almost always legal. However, even on that matter, I agree with Bill Clinton that abortion should be safe, legal, and rare. On the other parts of Cardinal Bernadin’s web, I probably agree with his position most of the time.

The second person is Pope John Paul II. When I was interviewed by Channel 9 about the Pope, I mentioned that, while I didn’t agree with every position taken by him, I appreciated his moral leadership on a broadly “pro-life” agenda. In particular, I agree with the Pope that the many western societies have a “culture of death,” which is masked by a frantic hedonism, and that the excesses of capitalism, putting profits above people, blight, stunt, and prematurely end the lives of millions of people.

The third person whom I want to mention is Hilary Clinton. In January of this year, she spoke before a family planning group in New York, arguing that people who are called “pro-choice,” should reach out to those that are called “pro-life,” to reach to establish some common ground. I believe that that is a very worthwhile project, because, as the Torah teaches us, we should choose life.

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