HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, April 14, 2005

Substituted Judgment Rule and Schiavo Case

Jrobertsonsg Professor John A. Robertson, University of Texas Law School, has written a new article entitled, "Schiavo and Its (In)significance," that is now available on SSRN.  The article provides an overview of the substituted judgment rule as well as an examination of its strengths and weaknesses in light of the Terri Schiavo litigation.

The asbtract follows:

Florida, like most states, adopted the substituted judgment paradigm for decision making for incompetent patients first outlined in In re Quinlan. Under that approach, the case appears to have been correctly decided, and should have been resolved after final review by the Florida courts. By reframing the case as one of starvation of a conscious person with a brain injury, Terri Schiavo's parents were able to generate massive public support from right-to-life and disability rights groups. This led to additional litigation and both state and national legislative attempts to overturn the results of an on-going judicial proceeding. These events demonstrate both the strengths and weaknesses of the substituted judgment paradigm, and the power of the right-to-life movement in judicial and policy decisions at the end of life.

The article does an excellent job of reviewing the Schiavo case and what it may mean for the future of end-of-life decision-making.  [bm]

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