George W. Bush, "culture of life," and Texas law

Bush speaks of Terri Schiavo and the "culture of life."

Here's an official statement from Bush on March 17, 2005:

The case of Terri Schiavo raises complex issues. Yet in instances like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. Those who live at the mercy of others deserve our special care and concern. It should be our goal as a nation to build a culture of life, where all Americans are valued, welcomed, and protected - and that culture of life must extend to individuals with disabilities.

(emphasis added). And then on March 31, 2005, Bush spoke briefly about Terri Schiavo:

Today millions of Americans are saddened by the death of Terri Schiavo. Laura and I extend our condolences to Terri Schiavo's families. I appreciate the example of grace and dignity they have displayed at a difficult time. I urge all those who honor Terri Schiavo to continue to work to build a culture of life, where all Americans are welcomed and valued and protected, especially those who live at the mercy of others. The essence of civilization is that the strong have a duty to protect the weak. In cases where there are serious doubts and questions, the presumption should be in the favor of life.

(emphasis added). This post will give the first of at least two reasons why Bush is a shameless fraud when he speaks of the "culture of life."

Reason 1

Texas statutory law has a Health & Safety Code, and Chapter 166 of that Code is entitled "Advance Directives," and it addresses situations such as the Schiavo case. Pursuant to § 166.031(1), a "directive" is "an instruction...to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition." Section 166.039 is particularly interesting:

PROCEDURE WHEN PERSON HAS NOT EXECUTED OR ISSUED A DIRECTIVE AND IS INCOMPETENT OR INCAPABLE OF COMMUNICATION.

(a) If an adult qualified patient has not executed or issued a directive and is incompetent or otherwise mentally or physically incapable of communication, the attending physician and the patient's legal guardian or an agent under a medical power of attorney may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment from the patient.

(b) If the patient does not have a legal guardian or an agent under a medical power of attorney, the attending physician and one person, if available, from one of the following categories, in the following priority, may make a treatment decision that may include a decision to withhold or withdraw life-sustaining treatment:

(1) the patient's spouse;

(2) the patient's reasonably available adult children;

(3) the patient's parents; or

(4) the patient's nearest living relative.

(c) A treatment decision made under Subsection (a) or (b) must be based on knowledge of what the patient would desire, if known.

(d) A treatment decision made under Subsection (b) must be documented in the patient's medical record and signed by the attending physician.

(e) If the patient does not have a legal guardian and a person listed in Subsection (b) is not available, a treatment decision made under Subsection (b) must be concurred in by another physician who is not involved in the treatment of the patient or who is a representative of an ethics or medical committee of the health care facility in which the person is a patient.

(f) The fact that an adult qualified patient has not executed or issued a directive does not create a presumption that the patient does not want a treatment decision to be made to withhold or withdraw life-sustaining treatment.

(g) A person listed in Subsection (b) who wishes to challenge a treatment decision made under this section must apply for temporary guardianship under Section 875, Texas Probate Code. The court may waive applicable fees in that proceeding.

(emphasis added). Take a good look at the emphasized portions, because they pretty much describe the Terri Schiavo case. This version of this provision became effective on September 1, 1999. The bill which contained this statute was SB 1260 in the 76th Legislative Session. The list of actions taken on SB 1260 shows it was signed by both the House and Senate (required under Texas law) on May 20, 1999, and sent to the Governor's Office the following day. It was signed into law by the Governor on June 18, 1999. And what is the significance of these events? On June 18, 1999, the Governor of Texas was...George W. Bush.

Please notice that § 166.039 does not require a court order. Under Texas law that Bush approved, the decision to stop life-sustaining treatment can be made by the attending physician and the legal representative of the patient. Michael Schiavo had been declared Terri's legal guardian. Even if he was not her legal guardian during the last round of litigation, under Texas law he would have had top priority--as her husband--to be the person to make the decision along with the doctor. And the whole process does not require a court. Remember that when you read what Scotty Boy McClellan said about Bush's views.

Before getting to McClellan's statements, let's look at another provision in Chapter 166, namely § 166.046. Thomas W. Mayo is a professor at SMU's Dedman School of Law, and an adjunct professor at the University of Texas Southwestern Medical School. He is also one of the leading authorities on medical law. On a sidenote, Professor Mayo's first year at SMU was also my first year of law school, and I had the great privilege to take several of his classes. As he explains on his blog, he helped write Chapter 166. Here is how he describes the effect of some sections of Chapter 166:

Under chapter 166 of the Texas Health and Safety Code, if an attending physician disagrees with a surrogate over a life-and-death treatment decision, there must be an ethics committee consultation (with notice to the surrogate and an opportunity to participate). In a futility...in which the treatment team is seeking to stop treatment deemed to be nonbeneficial, if the ethics committee agrees with the team, the hospital will be authorized to discontinue the disputed treatment (after a 10-day delay, during which the hospital must help try to find a facility that will accept a transfer of the patient).

Please note that an "ethics committee" means a committee of the particular health care provider. Section 161.046 falls within the process described by Professor Mayo. Here is § 166.046(e):

(e) If the patient or the person responsible for the health care decisions of the patient is requesting life-sustaining treatment that the attending physician has decided and the review process has affirmed is inappropriate treatment, the patient shall be given available life-sustaining treatment pending transfer under Subsection (d). The patient is responsible for any costs incurred in transferring the patient to another facility. The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision required under Subsection (b) is provided to the patient or the person responsible for the health care decisions of the patient unless ordered to do so under Subsection (g).

Notice two things about this provision: 1) life-sustaining treatment can be stopped at the discretion of the health care provider, regardless of the wishes of a family; and 2) once again, there is no requirement of a court order or court involvement.

And so why am I discussing Texas law? Well, I am not trying to argue the wisdom or lack thereof in the law. My objective is to show 1) how the Schiavo case might have played out had it taken place in Texas; 2) that George W. Bush, as Governor of Texas, signed these provisions and thus made them the law in Texas, meaning he gave his approval to these provisions; and 3) that his past actions are in contravention to his recent proclamations about a "culture of life."

Bush's approval of Texas contradicts his "culture of life" statements.

Now I know what some of you are thinking--Bush never expressly said that he thought Terri Schiavo should have been kept alive, nor did he take a clear position one way or the other on the matter. Anyone who really believes that should undergo a serious reality check.

I challenge anyone to make an argument that Bush was not equating "culture of life" with Terri Schiavo. Go ahead--I dare you. If any of you are feeling bold, you should first check out what Bush's official mouthpiece, Scotty McClellan, had to say. You will notice two things. First, no matter what the question, Scotty says basically the same thing with the same catch phrases. Second, there is no way to differentiate the "culture of life" from Terri Schiavo.

You will also notice that I am using lengthy excerpts. I apologize for this, but, as you will see, McClellan has the annoying habit of never really directly answering any question. This means that in order to show what Scotty is actually saying, one must read quite a bit to see through the bullshit.

On March 21, 2005, McClellan talked with reporters aboard Air Force One. That was the day that Bush signed a bill passed by Congress giving Terri Schiavo's parents the right to bring an action in federal court which they otherwise could not have filed. This law applied only to the Schiavo case. The reporters asked several questions about this law.

Q: Scott, does the President believe that Congress should take wider, broader action to--along the lines of what the House originally passed, to cover all patients, like they are covering Terri Schiavo?

MR. McCLELLAN: I haven't heard any discussion of that within the White House. This is an extraordinary case. It is a complex case, where serious questions and significant doubts have been raised. And the President believes the presumption ought to be in favor of life. But the presumption, particularly in a situation like this, where you have someone that is at the mercy of others, ought to be in favor of life. And that's the President's view. This was narrowly tailored to address this case.

Q: So then why not extend --

MR. McCLELLAN: Because this was an extraordinary circumstance.

Q: What makes it extraordinary, beyond a lot of attention being paid to it?

MR. McCLELLAN: The questions that have been raised. It's unclear what her wishes are. And her family, her parents have expressed that they would care for her for the rest of her life. So there are serious questions and significant doubts raised. I think most Americans recognize the extraordinary circumstance involved here. And the President is always going to stand on the side of defending life.

Q: Scott, if Congress would have passed a broader bill, you're saying he wouldn't have signed it?

MR. McCLELLAN: That's speculative at this point. For the President -- Democrats and Republicans alike came together to pass this legislation and give Terri Schiavo's parents another opportunity to save their daughter's life. And the President appreciates the efforts by Congress and he was pleased to sign the legislation last night.

*******

Q: Why not grant all parents that right? Why limit it to this one case?

MR. McCLELLAN: I think I addressed that previously Anne, when you brought it up. This is an extraordinary circumstance. And this law was narrowly tailored. It didn't create any new substantive rights under federal or state law, but it is an extraordinary circumstance. We stand with Terri Schiavo's parents. We stand with members of Congress, Democrats and Republicans, and all those who are on the side of defending life. There are a number of questions that have been raised in this case and the President believes we ought to err on the side of life in this situation.

(emphasis added). The emphasized portions show that immediately before or after McClellan says "culture of life" or being on the "side of defending life," he mentions the Schiavo case. He does not mention any other specific circumstances. And even when he did speak more in generalities, he always said something to the effect that the Schiavo case was an example of such generalities. In other words, McClellan's statements on March 21 indicate that for Bush the "culture of life" meant keeping Terri Schiavo alive. Scotty was just getting warmed up...

At the March 29, 2005, press briefing, the Schiavo case was discussed.

Q: In the Terri Schiavo case, there seems to be more efforts to exhaust legal wranglings to reinsert Terri Schiavo's tube. What are the President's thoughts about this. As he said, there's nothing else he could have done.

MR. McCLELLAN: Well, I don't think that's what the President said, first of all. Let me correct you on that. The President is saddened by the situation. We continue to stand on the side of defending life. We stand on the side of the parents and all those who are working to defend life. This is a complex case, and the President believes in a situation like this, we should always err on the side of life. And so we will continue to stand with all those who are seeking to defend life.

Q: So is he working with the senators in some kind--working the phones, some kind of backdoor approach to possibly work out some kind of emergency situation to reinsert this tube?

MR. McCLELLAN: As he spoke about last week, we looked at all our options, we explored all our options from the executive branch side, and we made a decision to support the congressional efforts. And Congress passed legislation that the President signed; that legislation gave her parents another opportunity to try to save their daughter's life. They are continuing to work, as well as others, to save their daughters life. And we will continue to stand with those who are on the side of defending life. The President believes that our nation, in situations like this, where someone is at the mercy of others, we should have a presumption in favor of life.

Q: Has the President, since he feels so strongly about this, has he reached out to the parents of Terri Schiavo?

MR. McCLELLAN: I don't have any updates on phone calls he's had with them, but obviously, like I said, we continue to stand on the side of the parents and all those who are working to defend life in this situation.

(emphasis added). The analysis of McClellan's March 21 statements applies to these statements as well, but in these statements, McClellan more directly said that"standing with those who defend life" meant trying to keep Terri Schiavo alive. But wait...there's more.

At the March 31, 2005, press briefing, Scotty Boy did more than merely repeat all his catch phrases. But first--let's see some catchphrases:

Q: Okay. The President said that in cases where there are serious doubts and questions, the presumption should be in the favor of life. Should we expect to see the President now pushing for new legislation regarding changes to the way we make end-of-life decisions, the appeals processes for innocent -- possibly innocent inmates on death row, and other issues where life hangs in the balance?

MR. McCLELLAN: First of all, this is a day of sadness, and the President expressed his condolences to the parents of Terri Schiavo and to all those who supported her and prayed for her during the past few weeks. This has been a difficult period.

The President viewed this case as an extraordinary one. There were extraordinary circumstances involved in this case. But the President has also made it very clear that he believes our nation should build a culture of life, that we should be working together to build a culture of life in America, and that means protecting life at all stages, particularly those who are at the mercy of others, like Terri Schiavo.

You know, it just might be time to make McClellan the star of his very own variation of "Hi, Bob!" That is an obscure pop culture reference, but if you know what "Hi, Bob!" is, then I think you will agree that a similar game could be centered around McClellan.

Anyhoo, the new material on March 31 concerned the judicial system.

Q: On the Terri Schiavo case, in a statement, Tom DeLay expressed disappointment at federal courts for what he says was their ignoring the intent of the Terri Schiavo law. His statement actually was quite forceful. He said a time will come for the men responsible for this to answer for their behavior, but not today. Given the fact that the President felt strongly enough to interrupt his Easter recess to rush back here to Washington to sign that very legislation, does the President share that sentiment?

MR. McCLELLAN: The President is always going to stand on the side of defending life. He's made that very clear through his words, as well as through his action. We have taken important steps, through legislation, to promote a culture of life in America. But, ultimately, the President believes that we have to change our culture and we have to change hearts. And that's something that will require continued diligence on behalf of all Americans who want to build a culture of life. There are many ways we can work together to promote a culture of life in America.

Now, in terms of this specific situation, I think you've heard the President's views on it. We would have preferred a different decision from the courts. That's why the President supported the legislation that was passed by Congress, and he is saddened by this situation, and he is saddened on this day.

Q: Does he feel that the courts erred?

MR. McCLELLAN: He would have preferred a different outcome. But, ultimately, we have to follow our laws and abide by the courts.

(emphasis added). First, The Bug Man should go intercourse himself. Second, although Scotty said that there has been legislation "to promote a culture of life," the only legislation he discussed on March 31 was the legislation that allowed Terri Schiavo's parents to file a suit in federal court, which once again equates "culture of life" with the Schiavo case. And last, but certainly not least, McClellan's statements establish that Bush wanted the courts to decide Terri Schiavo's fate and that Bush wanted the courts to make a different decision.

And that brings us back to the Texas law approved by Bush when he was Governor. Recall that under that law, a decision to cease life sustaining medical treatment can be made by 1) the attending physician and the patient's legal guardian, or 2) the attending physician and the patient's spouse (if there is not a legal guardian), or 3) the attending physician and the health care provider's ethics committee, even if their decision is against the family's wishes. AND all of those decisions can be made without the need of any court involvement. Indeed, as Professor Mayo--who helped write Chapter 166, if you recall--said, "the statute doesn't require a court order. Indeed, the statute was designed to keep these cases out of court, if possible."

So, for Bush "defending life" and trying to establish a "culture of life" came down to wanting the courts to step in and decide to keep Terri Schiavo alive even though her guardian/husband and the courts had previously decided to the contrary. Thus, Bush's position on the Schiavo case is completely different than the law he his own self approved and signed into law in Texas in 1999. Let me put it this way: had the Schiavos been living in Texas, Michael Schiavo and doctors not only could have decided to end Terri's life-sustaining treatment, but they could have made a legally enforceable decision to that effect without having to go to court at all. As a result, had the Schiavo case taken place in Texas, George W. Bush would have had to say that he was trying to circumvent the very provisions that he personally made the law of the State of Texas.

No doubt that some wingers out there are going to insist I am simply wrong about that, and they will likely rely on more statements from Scotty Boy, specifically those made before reporters on March 21, 2005.

Q: Scott, you may remember this from your Texas days. A member of Congress in Florida, Deborah Wasserman Schultz, got on the floor yesterday and said that the President, when he was Texas Governor, signed a piece of legislation into law that, she said, would allow -- when there's a dispute, would allow a feeding tube to be removed and that -- she was a little bit murky on exactly what the law was, but, essentially, she was saying that the President signed something into law that's contradictory to what he is doing now.

MR. McCLELLAN: That's absolutely incorrect. The legislation he signed is consistent with his views. You know, this is a complex case and I don't think such uninformed accusations offer any constructive ways to address this matter. The legislation that he signed into law actually provided new protections for patients. He had previously vetoed legislation in 1997, when he was Governor, which essentially would have sanctioned current law in Texas that allowed hospitals to stop providing life-sustaining treatment -- because under Texas law, prior to the passage of the '99 legislation that he signed, there were no protections. And so this legislation was supported by many; it enjoyed strong bipartisan support; concerned citizens, various groups came together to support this legislation and put in place new protections for patients.

Assuming that Scotty is correct in asserting that Chapter 166 as enacted in 1999 provided protections for patients that did not exist before, that in no way addresses the plain meaning of that law as described in the above paragraph that starts with "And that brings us back to the Texas law..." Scotty then went from not really answering the question to misstating the law.

The legislation was there to help ensure that actions were being taken that were in accordance with the wishes of the patient or the patient's family. And let me give you an example. Prior to that legislation being passed I think there was a 72 hour period where if the hospital notified a patient -- or the family that represented the patient that they were going to deny life-sustaining treatment, then they had just that 72 hour period to find a place to transfer the patient, that would provide the treatment.

This legislation, some of the new protections it put in place were--included, the ethics committee review by the hospital, in working with the families as well, making--you know, to discuss those decisions, determinations. And it also provided a 10-day period, so they had 10-day notice to be able to transfer the patient to another health care provider. And it also authorized court proceedings to extend that 10-day period in order to extend that transfer, if necessary.

(emphasis added). Let's set the record straight. As shown above, § 166.046(e) allows the health care provider (including its ethics committee) to take actions that are the opposite of the wishes of the patient or the patient's family. For that matter, § 166.039 allows for the same possibility when the patient's legal guardian or representative is not a family member (as in blood relative). Next, McClellan correctly stated that "the ethics committee review" allows for discussion of opposing views, but the person involved is "the person responsible for the health care decisions of the individual" [See § 166.046(b)], and that might not be a family member. Lastly, in speaking of court proceedings, McClellan left out the real explanation. Scotty was referring to § 166.046(g):

(g) At the request of the patient or the person responsible for the health care decisions of the patient, the appropriate district or county court shall extend the time period provided under Subsection (e) only if the court finds, by a preponderance of the evidence, that there is a reasonable expectation that a physician or health care facility that will honor the patient's directive will be found if the time extension is granted.

(emphasis added). What this means is that the primary question to be answered by the court is whether there is another doctor or facility that will take the patient and provide the life sustaining treatment. The only other issue to be determined is the length of the extension. In other words, the court DOES NOT AND CANNOT determine whether the life-sustaining treatment should be stopped or not. The court thus will not and cannot make the type of decision that Bush wanted in the Schiavo case.

Conclusion

There you have it, folks. George W. Bush wanted the courts to decide to keep Terri Schiavo alive. George W. Bush wanted that because that is what he meant by establishing a "culture of life." Why is it, then, that in 1999 George W. Bush, as Governor of Texas, approved a series of statutes that are in complete contravention of what he now wants as a "culture of life?" I do not have a definitive answer to that question, but I do know that the Texas law and Bush's actions and statements regarding Terri Schiavo are irreconcilable. And that is the first reason I call Bush a shameless fraud when he proclaims he wants a "culture of life."

The second reason is that Bush focused all his efforts on one person whose condition was irreversible and irreparable and neglected scores of people with disabilities who were injured in the service of our country. And that will be covered in the next post.