Waking from the Dead

Terry Wallis recently woke up. For most of us, this would not be news. But for Terry it was a huge event: He had been unconscious for nineteen years due to injuries sustained in an auto accident. Indeed, upon awakening, he believed that Ronald Reagan was still President.

Wallis’ recovery should give great pause to the bioethics movement and members of the medical intelligentsia, many of whom seem determined to read people like Terry out of the human family. In mainstream bioethics philosophy, being a human being is not itself sufficient to a claim of moral worth. What matters primarily is whether a “being” possesses sufficient consciousness or cognitive capacity to earn the label of “person.”

Welcome to the surreal world of “personhood theory,” under which people diagnosed with permanent loss of consciousness or the ability to meaningfully think and communicate with the world are denigrated as “nonpersons.” Human nonpersons, in this way of thinking, are no longer deemed to be full and equal members of the human community. This means they have fewer rights and lesser value. (Other supposed human nonpersons include embryos, fetuses, newborn infants”sometimes referred to as “potential persons””people with significant developmental disabilities, and people with Alzheimer’s disease.)

The history of the human race demonstrates that whenever human beings are categorized as somehow “different” and “inferior,” it inevitably leads to their oppression, exploitation, and death. Today this is proving to be true once again.

After a series of lawsuits, most famously the 1990 Nancy Cruzan case in the United States Supreme Court, all fifty states now permit profoundly cognitively disabled people to be dehydrated to death by withholding or withdrawing tube-supplied nutrition and hydration, as long as their families consent. Such action is not taken because supplying food and water is medically inappropriate, but because of judgments about the quality of these patients’ lives. It is worth noting, in this regard, that many states permit conscious cognitively disabled patients to be dehydrated, if no family members object, even though these patients would have to endure the agony of going without food or water for the two or more weeks it generally takes to die by dehydration.

These cultural and legal developments have led us to the brink of applying personhood theory in constitutional jurisprudence. The case that has gone the farthest in this regard is California’s Conservatorship of Wendland . Robert Wendland was an auto-parts salesman who suffered a catastrophic brain injury in a car accident. He was unconscious for sixteen months but slowly revived. Indeed, he eventually improved to the point that he could maneuver a wheelchair down a hospital corridor and respond to simple requests, such as removing and replacing colored pegs from a board.

At this point, Rose Wendland, Robert’s wife, decided to withhold food and fluids, a move supported by the Lodi Memorial Hospital ethics committee. Before this could be done, an alarmed nurse anonymously warned one of Robert’s sisters about the plan. Florence Wendland, Robert’s mother, then sued to prevent the dehydration.

The case was fought bitterly for six years, ultimately being decided by the California Supreme Court a few months after Robert died of pneumonia. Florence won the case when the state high court ruled that as a matter of protecting the right to life of conscious cognitively disabled patients, a court-appointed conservator must prove by “clear and convincing evidence” that withholding tube-supplied food and fluids is in the patient’s “best interests” or would have been what the patient wanted.

That much was fine. But frighteningly, the court also ruled that such basic constitutional protections do not extend to people who are diagnosed as permanently unconscious. In other words, according to the California Supreme Court, Robert Wendland enjoyed full constitutional rights when he was an auto-parts salesman. But he lost at least some of these protections during the sixteen months of his unconsciousness”only to regain them when he awakened. Or to put it another way, the court declared that unconscious people have lesser rights and their lives are entitled to fewer legal protections than conscious people”a radical decision that may mark the beginning of a personhood theory of constitutional jurisprudence in the United States.

The Wendland case initially involved a dispute over which family member had the right to refuse medical treatment for a cognitively disabled patient and ultimately the legal standards that should apply when there is family disagreement. But now, some bioethicists believe that doctors or hospital ethics committees”instead of patients and families”should have the final say whether or not to provide treatment in some cases. Under the doctrine known as “futile-care theory,” many bioethicists urge that doctors be given the power to refuse wanted life-sustaining treatment based on their views about the lack of quality of their patients’ lives. This would include not only tube-supplied food and fluids but potentially other medical interventions such as antibiotics, fever reduction, and respirators.

Among the first”but certainly not the only”patients that are being targeted for unilateral withholding of wanted treatment are profoundly cognitively disabled people just like Terry Wallis”that is, patients suffering from long-term unconsciousness. Indeed, one hospital futile-care protocol explicitly states: “Provision of any treatment other than comfort care to a patient in an irreversible coma, persistent (permanent) vegetative state, or with anencephaly [is] inappropriate.” Under that protocol, if a doctor wished to withdraw treatment from an unconscious patient, he or she would merely have to “provide written justification” to the hospital administration.

There have already been a few lawsuits involving futile-care theory. Some have ruled in favor of the doctors, and some the patients. None, so far, has reached the appellate courts. Thus, whether doctors and/or ethics committees will receive the ultimate legal power to make such life-and-death nontreatment decisions remains to be seen.

As if this weren’t alarming enough, human non-persons with cognitive disabilities are beginning to be looked upon by some as a natural resource to be plundered for their body parts. There is even an effort underway by some in bioethics and transplant medicine to redefine death itself to include a diagnosis of permanent unconsciousness toward the end of gaining access to the organs of unconscious people for the purposes of transplantation.

This proposal is not limited to the fringe but is promoted by some of the world’s most respected organ transplant professionals and ethicists. For example, in the November 1, 1997 issue of Lancet , a British medical journal, several doctors writing for the “International Forum for Transplant Ethics” urged that the legal definition of death be changed to include permanent unconsciousness so that “it would be possible to take the life of a patient (or more accurately stop the heart since the patient would be defined as dead) by a lethal injection, and then remove the organs needed for transplantation, subject to the usual criteria for consent.” In other words, death would cease to be a matter of biology but would become a sociological construct. (It must be stressed at this point that these proposals have not yet been enacted.)

Bioethicists have one version of how society should treat our most vulnerable brothers and sisters; the Wallis family has another. For nineteen years while Terry lay unconscious, they cherished him, visited him in the rehabilitation center where he resided, and even brought him home on special family occasions. In short, Terry wasn’t ever viewed as a burden, he wasn’t cast into the outer darkness of nonpersonhood, he wasn’t deemed killable, he wasn’t seen as being morally equivalent to the dead, but remained a beloved member of his family and society. Indeed, doctors say this special attention may have been a factor in his unexpected awakening.

This raises a crucial question. Do we want to follow the lead of the bioethics “experts” who would write off people such as Terry Wallis as expendable”or instead, follow the loving example of the Wallis family who never let the very real emotional and physical difficulties associated with his caregiving blind them to his humanity and inherent moral equality? The lesson of this story, it seems to me, is that the healing power of unconditional love should trump sterile intellectualism every time.

Wesley J. Smith is a senior fellow at the Discovery Institute and an attorney and consultant for the International Task Force on Euthanasia and Assisted Suicide. A revised and updated edition of his book Forced Exit: The Slippery Slope From Assisted Suicide to Legalized Murder was recently released by Spence.