Hudson/Nikolouzos update and correction

The two Texas cases I cited earlier turn out to have involved patients in persistent vegetative states, just like Terri Schiavo. Unlike her, they couldn’t even breathe on their own, which is a distinction some people find relevant.
However, the Texas Futile Care law signed by Gov. Bush would clearly have allowed Schiavo’s plug to be pulled, even if it were clear she wanted to stay alive: even, in fact, if she were fully awake and asking to be kept alive.

Kevin Keith at Lean Left has a long and thoughtful defense of “futile care” laws, and a critique of my earlier analysis of the Hudson and Nikolouzos cases, based in part on what seems to be a more accurate account of the facts.

It appears that Sun Hudson was, and Spiro Nilolouzos is, persistently vegetative. That reinforces my conviction that pulling the plug is the right thing to do. In particular, it justifies the term “futile” in “futile care”: keeping the lights on when there’s no longer anyone home is futile, while keeping someone alive who is certain to die soon is not.

Still, that information doesn’t much weaken my belief that the call should be made by the families, not by the health-care providers.

Thanks to a reader, I’ve finally managed to make sense out a distinction that might be made by those who are outraged about Schiavo but silent about the Texas cases. They can’t breathe without assistance; she is able to breathe on her own, but can’t swallow and therefore needs to be fed through a tube.

Some of the major religious traditions regard assisted breathing, but not tube-feeding, as an “extraordinary” measure, so that taking away her feeding tube counts as killing while taking away Sun Hudson’s breathing tube didn’t.

That distinction seems utterly arbitrary to me. In particular, it doesn’t distinguish between a “terminal” and a “non-terminal” case in any meaningful sense; in each instance, it might be possible to maintain the heartbeat and brainstem indefinitely.

Still, it might seem valid to someone else, who could then have at least a subjective good-faith reason to want to keep Schiavo alive while not minding the removal of life support from Hudson and Nikolouzos. (I’d still argue that awareness is morally relevant to the question of ending care, while the specific function that needs assistance and the life expectancy of the patient are irrelevant, but your mileage may vary.)

Nonetheless, if the distinction among the cases is so fine-grained, it’s hard to credit the sincerity of people who throw around terms such as “murder” and “Dachau” when talking about Schiavo but make no objection to the Texas law, especially since the Texas law specifically lists “artificial nutrition and hydration” as among the services that can be discontinued.

Moreover, the law allows for (even if in the Hudson and and Nikolouzos cases it did not actually involve) the termination of life-sustaining treatment for patients with “irreversible” conditions (i.e., conditions from which they will not recover and which leave them unable to care for themselves) even if their higher brain functions are completely normal. Indeed, the law contemplates that a fully competent patient may be served by his health-care provider with a 10-day notice to find another provider or have his plug pulled; it even provides that the patient has the right to attend the committee meeting at which his fate is to be decided. (Sec. 166.046) And the law provides no substantive guidance other than the provider’s decision that the requested life-sustaining care would be “inappropriate.”

So, if I read the Texas law correctly, it would allow for Terri Schiavo’s feedling tube to be disconnected if her health care provider so decided, and if her family couldn’t find another provider willing to take the case, even if her higher brain functions were entirely normal (rather than, as appears to be the case, entirely absent), even if she were awake and asking to be allowed to live.

So, I repeat, where’s the outrage? If you think Terri Schiavo is being murdered, you think that George W. Bush signed a bill allowing murder in 1999, and that bill is still on the books. Perhaps Mr. Bush flew to the wrong capital on Sunday; some people in Austin seem to need instruction about the “presumption in favor of life.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: