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22 Const. Comment. 383 (2005)


A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, I will provide a brief sketch of how the law - both as enacted and interpreted - might ideally serve to promote and defend the goods of autonomy and self-determination. I will thus assess the process and outcome of the Schiavo case by carefully examining the positive law governing the case, as well as the specific evidence relied on by the Florida courts to assess Ms. Schiavo's actual wishes (the touchstone of autonomy). Moreover, I will contrast the manner in which the Florida courts evaluated this evidence with the seemingly consistent and uniform approach taken by courts from other jurisdictions. I will additionally explore the significance of the Florida courts' decision to focus the majority of their resources and time on inquiries not oriented towards Ms. Schiavo's actual wishes, but rather on matters relating to paternalistic considerations, such as her present and future quality of life. In light of the foregoing analysis, I conclude that the Schiavo matter cannot rightly be understood as a victory for self-governance at the end of life. To the contrary, it is instead a cautionary tale of what can happen when the legal preconditions for the exercise of autonomy are absent or ignored.


Reprinted with permission of Constitutional Commentary.



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