By J.A. (Tony) Patterson, Jr., Fulbright & Jaworski, L.L.P., Dallas, TX
Like many, if not all, of you, I have been deeply affected and troubled by the national furor over the Terri Schiavo situation. I have had very mixed emotions as the various constituencies have come forward to weigh in on the tragedy. Religious, moral, ethical and legal/constitutional forces converge in a frightening array. This could be called the “perfect storm” of the right to die—or live—dilemma.
The trials and tribulations of the Karen Ann Quinlan right to die debate over roughly a decade, from the late 1970s to her death in 1985, and of the Nancy Cruzan case, ending in her death in 1990, generated much the same national debate, but the fever pitch and media circus arising from the Schiavo case is far greater than I remember we experienced in either of those cases. These earlier cases sparked state legislatures to take action to address the problem of what to do with a person in a persistent and permanent vegetative state. State legislatures across the country developed laws permitting citizens to indicate in written form their preferences and instructions for this possibility. “Living wills,” “advance directives” and “durable powers of attorney for health care” are now readily available to address the problem. States also tried to address by statute the process for dealing with those situations in which no advance directive may exist. For many years, the Conditions of Participation for Medicare and Medicaid provider status have required a facility to inquire prior to a patient’s admission about whether the patient has an advance directive. Yet no legislature can mandate personal responsibility. Without a person taking personal responsibility to complete what is usually a simple form; dire consequences follow. I wonder how many of the politicians, journalists, protestors, lawyers handling the case, attending physicians and even Terry Schiavo’s husband and parents have made the effort to avoid this from happening. I implore each of you in your own situation and for those in your family, and any others over whom you have any personal or professional influence, to complete an advance directive.
The ABA has an abundance of materials on advance directives. Most state and local bar associations have information specific to your state. We urge you to take advantage of the resources available.