---

Let end-of-life decisions
remain with families

THE ISSUE Terri Schiavo died at a Florida hospice after state and federal courts refused to order her feeding tube to be reattached.

TERRI Schiavo's passing nearly two weeks after the removal of the feeding tube that had kept her alive for 15 years will not end the emotional debate about issues of right to life and to death. It should not be the catalyst for government to intrude on family end-of-life choices or on states' rights to settle intra-family disputes about those decisions.

Some state legislatures began to consider new end-of-life legislation but seem to have backed away from the overwhelming public opposition to government intrusion on decisions that belong with families. Hawaii legislators have wisely ignored three bills that would create difficulty for families in making those decisions.

Schiavo's legacy will be that her struggle ignited conversations across the country about how family members would want to be treated, or allowed to die, under similar conditions. Many people who had not thought much about such a circumstance have drafted living wills to make their desires known.

Resolution of those rare cases where the person had not made their end-of-life wishes known, and family members disagree, should remain in state courts. That has been the system in place since a New Jersey court allowed the father of Karen Ann Quinlan, who suffered brain damage in 1957, to transfer her to a doctor who agreed to detach a respirator. Quinlan kept on breathing and died nine years later.

After Nancy Cruzan fell into a persistent vegetative state because of injuries in a 1983 car accident in Missouri, the U.S. Supreme Court upheld Missouri's requirement that "clear and convincing evidence" be shown that a patient did not wish to be kept alive by a feeding tube, but states are not obligated to require that level of proof. Cruzan's parents eventually were able to make their case in state court, and she died after the feeding tube was removed.

Most states, including Florida and Hawaii, require that a guardian provide evidence that a patient would not likely want to be kept alive after losing mental awareness. Florida courts ruled time and again under that lower evidentiary standard that Theresa Marie Schiavo probably would not want to continue living under her persistent vegetative condition.

A bill introduced in the Hawaii Legislature in January by Sens. Norman Sakamoto and Fred Hemmings and similar bills by Reps. Michael P. Kahikina and Dennis Arakaki propose adopting the "clear and convincing evidence" standard. That standard is unreasonable, making it nearly impossible for a guardian to demonstrate the patient's desire to end life support without absolute evidence such as a living will.

Congress overstepped its bounds when it passed a bill allowing Schiavo's parents to go to federal court in an attempt to overturn the state courts' decisions upholding the right of her husband, her legal guardian, to have the feeding tube removed. The federal courts properly upheld the Florida courts.

The swift federal court reviews left little time to address the broader issue of congressional interference with the judicial system, but 11th Circuit Court of Appeals Judge Stanley F. Birch late in the process called it unconstitutional. Birch, who was appointed to the court by the first President Bush in 1990, warned in a separate opinion concurring with the court's final rejection on Wednesday that the bill, which pertained only to the Schiavo case, established precedent "for the constitutional transgressions of tomorrow."

The bill, signed into law by President Bush before dawn March 21, amounted to "legislative dictation of how a federal court should exercise its judicial functions," Birch wrote, adding that it "invades the province of the judiciary and violates the separation of power principle."

Birch is known for his conservatism on social issues; he authored the opinion last year upholding a Florida law prohibiting gay men and lesbians from adopting children. His harsh assessment of the Schiavo legislation demonstrates the rift within the GOP between limited-government proponents and religious conservatives. Republicans should be wary about pressing the issue further.