The Terri Schiavo case was a key battle in a larger political struggle over abortion, stem-cell research, physician-assisted suicide, gay rights, and the appointment of federal judges. The religious Right chose to make it a national spectacle because they thought they could win. They were wrong. But there are many more battles to come. Jon Eisenberg, who served as one of the lead attorneys on Michael Schiavo's side, exposes the religious Right's strategies and follows the money trail to reveal how they are organized, who is funding the movement, and where we can expect future legal maneuvers to combat the American traditions of autonomy and freedom. Jon Eisenberg has experienced the family struggle of removing a feeding tube from a loved one and witnessed firsthand the Florida drama that will continue to have national legal and political consequences for years to come. What tactics can we expect to see in courtrooms and state legislatures all across this country in the days ahead? Who is behind the funding and what do they hope to accomplish and when? What are the religious and bioethical issues that are at the center of these debates and how will they affect future legal battles? Using Terri gives us a behind-the-scenes look at what happened -- and what's coming.

Jon B. Eisenberg is with the law firm of Eisenberg & Hancock LLP and teaches appellate procedure at University of California Hastings Law school in San Francisco

Preface to the Paperback Edition

v

Introduction

ix

PART ONE Whence It Came

1. My Cousin Ros

3

(8)

2. A Family Tragedy

11

(15)

3. The Right to Die

26

(16)

4. The Bioethicists

42

(11)

5. The Word of God

53

(15)

6. The Slippery Slope

68

(9)

7. The Voice of the People

77

(8)

8. The End of Life

85

(9)

9. The Think-Tank Machinery

94

PART TWO Where It Went

10. Jeb Strikes Out

113

(16)

11. Judge Greer Toughs It Out

129

(13)

12. The Florida Legislature Bows Out

142

(8)

13. The Tube Comes Out

150

(6)

14. The Democrats Bail Out

156

(15)

15. The Judges Speak Out

171

(11)

16. Jeb Chickens Out

182

(7)

17. Time Runs Out

189

(10)

PART THREE Where It's Going

18. Vengeance

199

(8)

19. Smash the Third Branch

207

(12)

20. Hand-to-Hand Combat

219

(7)

21. My Uncle Bernie

226

(7)

Appendix

233

(14)

Acknowledgments

247

(2)

Chapter Sources

249

(28)

Index

277

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The Right vs. the Right to Die
Lessons from the Terri Schiavo Case and How to Stop It from Happening Again

Chapter One

My Cousin Ros

I joined Michael Schiavo's legal team in March 2005 because I understood well his painful task. It is not easy to "pull the plug" on someone you love. I know from personal experience.

In 1998, my cousin Roslyn August suffered a devastating stroke that left her with what doctors called "global aphasia." As one of them put it, "Nothing is getting through to her, and nothing can come out." I spent days at her bedside trying to communicate. I held her hand and asked her to squeeze it. Nothing. I told her to blink if she could hear me. Nothing. I kissed her cheek. Nothing.

Yet she was not in a coma. Her eyes were often open, and sometimes they tracked me as I crossed the room. She seemed lost somewhere between life and death.

On one visit to her bedside, I brought my favorite photograph of her. The photographer had caught her standing in a grove of trees at the base of Yosemite Falls wearing a big, silly grin, facing upward with her arms held up to the sky, as if to say, "How lovely!" I handed her the photograph. She took it in one hand, seemed to look at it uncomprehendingly, and then dropped it and went blank again.

Was she in a persistent vegetative state? None of the doctors ever said. Was she in a minimally conscious state? That diagnosis did not yet even exist. Could she improve? This the doctors could tell me: no. There was nothing they could do.Except for one thing: They could keep her alive with a feeding tube inserted through her nose into her stomach.

Ros was seventy-nine years old and had been in failing physical and mental health for three years. She was my second cousin once removed: her great-grandparents were my great-great-grandparents. But she was more like a favorite aunt to me than a distant cousin. She had been part of my innermost family circle since my early childhood, and we became good friends in my adult years. The only other relatives with whom Ros had regular contact were a brother in New York City, a niece in San Francisco, and my parents and grandmother in Los Angeles. Ros lived alone in a one-room apartment in Oakland, California—just a few miles from me and my wife, Linda Hillel—subsisting on a small government pension.

Ros often had Linda and me over for dinner. Her cooking was . . . well, not so hot. But she did one thing superbly—the Spanish seafood and rice dish, paella. And she was great company. Dinner with Ros was fun.

Ros was a free spirit. She had been married briefly in her youth, and after that she knocked around for years before settling down in Northern California and putting herself through college and graduate school, from which she emerged with a masters degree in social work. She became a psychiatric social worker, employed by a county agency to evaluate mentally disturbed people for government conservatorships. She came to know intimately the world of mental institutions and nursing homes.

Ros retired in her early sixties. She kept close friends. She cultivated many hobbies—weaving, stained glass, poetry, hiking. She traveled widely.

In her seventies, Ros began to slow down. Travel became more difficult. She grew impatient with friends. She became forgetful. She sometimes got lost during her goings about town, which frightened her terribly.

Over the years, our dinner conversations occasionally turned to the subject of death and dying. Ros said she did not want to be kept alive at all costs. We discussed the high-profile "right to die" cases of the day—Karen Ann Quinlan, the New Jersey woman whose parents disconnected her respirator in 1976; Nancy Cruzan, the Missouri car accident victim whose 1990 case in the U.S. Supreme Court established the constitutional right to refuse tube feeding and other medical treatment; and several local cases that were widely publicized in California. Ros made her position clear: "No machines or tubes for me."

Most Americans feel that way.

Ros even went so far as to get information from the Hemlock Society on how to end her life with drugs, which she planned to buy on a trip to Mexico.

From 1988 through 1996, Ros made several wills appointing me her executor. She had also given me legal power of attorney over her financial affairs should she become unable to handle them, and she executed several advance health-care directives naming me as her surrogate decision-maker. Her most recent health-care directive, on a form I had given her in 1996, said: "I do not want efforts made to prolong my life and I do not want life-sustaining treatment to be provided or continued" under any circumstances "where the burdens of the treatments outweigh the expected benefits."

Ros gave me power over her life and death. But her health-care directive said nothing about feeding tubes. Back then, none of the standard form advance directives did so.

In the fall of 1997, Ros's downhill progression advanced considerably. She became confused, incontinent, and reclusive. She began setting kitchen fires. One day I went to visit her and discovered smoke pouring from her open front door. She had left a skillet of hamburger meat on an open flame. The Oakland Fire Department came and extinguished the smoldering remains.

After a handful of fires, I had her oven disconnected and arranged for daily deliveries of meals-on-wheels from a senior services provider. She asked, "How am I going to make coffee?" I bought her an electric kettle.

I begged Ros to let me place her in an assisted living facility. She was adamantly against it, saying, "I've seen those places. I know what they're like. I'm not ready yet."

But she was oh-so-ready. She just didn't realize it. Or couldn't face it.

Eventually, Ros stopped eating. This was truly alarming, for food had . . .

The Right vs. the Right to Die
Lessons from the Terri Schiavo Case and How to Stop It from Happening Again. Copyright © by Jon Eisenberg. Reprinted by permission of HarperCollins Publishers, Inc. All rights reserved. Available now wherever books are sold.

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