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CNN LARRY KING LIVE

Guest Panel Discusses Terri Schiavo Case

Aired March 23, 2005 - 21:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(BEGIN VIDEO CLIP)
GOV. JEB BUSH, (R) FLORIDA: If there's any uncertainty, we should err on the side of protecting her.

(END VIDEO CLIP)

CHRIS PIXLEY, GUEST HOST: Tonight Florida governor Jeb bush joins the battle over Terri Schiavo. And the judge who ordered her feeding tube removed five days ago says he'll rule by noon tomorrow on the state's effort to intervene.

We've got all the latest news, and heated debate with guests, including Pat Boone, who's grandson is emerging from a coma after a terrible fall four years ago.

It's all next on LARRY KING LIVE.

Good evening, everyone. I'm Chris Pixley in for Larry tonight. I want to thank Larry for allowing me to begin here.

Before we begin, a brief programming note, Larry's interview with the legendary Lauren Becall has been rescheduled. And Larry, of course, will be back here tomorrow night to speak to everyone.

I want to go first of all out to John Zarrella. But before doing that, I want to introduce the panel. Tonight with us out of Miami bureau, CNN correspondent John Zarrella. Also with us tonight, we have, again, Pat Boone. Pat Boone, the entertainer, the renowned Christian singer. His grandson Ryan continues to recover from a coma he went into in what is described as a freak fall in June of 2001.

From Philadelphia, Arthur Caplan, he's the professor of bioethics and the chairman of the Department of Medical Ethics at the University of Pennsylvania. He is also the director for the Center for Bioethics at U Penn. He supports Michael Schiavo's position, and he has said that it is clear the time has come to let Terri die.

Here in Atlanta, CNN chief medical correspondent, Sanjay Gupta. Sanjay, the neurosurgeon will be describing for us some of the medical elements of this case. From Washington, D.C., Congressman Chris Smith. Congressman Smith is the Republican from New Jersey. He supported the legislation just this past weekend that allowed Terri's parents, Robert and Mary Schindler, to take their case to federal court. Terri's brother Robert worked out of Smith's office and lobbied members to vote in favor of that bill. Finally, with us also out of Washington, D.C. Is Julien Epstein. Julien is the former chief minority counsel in the House judiciary committee chairman. He has written and published extensively on the division of federal and state responsibility.

Get us up to date, John, from Miami.

JOHN ZARRELLA, CNN CORRESPONDENT: Chris, I can tell you that here at the hospice the latest developments, about an hour ago the Schindler family, that's Bob and Mary and Suzanne, their daughter, did get into see Terri. But that came after about 4 1/2 hours late this afternoon, and into the evening, where they were not permitted to go in. It appears as if Michael Schiavo or members of Michael's family were in there at that time, and that's why the Schindlers were not permitted to go in.

But they did get in and spent about ten minutes with Terri. No word from them on how she looks right now. But they were certainly upset, visibly upset, that they had been kept out for four hours.

Now, they didn't do very well in the courts today either. It was a tough day for the Schindlers. The 11 Circuit Court of Appeals turning down their request that it intervene. The next action on the federal level likely to be the U.S. Supreme Court.

On the state level, the Florida Senate, which had been debating a bill for the last week or more, was not able to come to a positive decision, voting 21-18 against a bill that might have allowed the feeding tube to be reinserted.

And at the 11 hour, Governor Bush with a surprise announcement. He has asked the Department of Children and Families to intervene based on what he called new and compelling evidence. A doctor in Jacksonville, a neurologist, is saying that he observed Terri, he looked at the medical records, and he looked at all of the videotapes that are out there, many of the videotapes that out there, and came to the conclusion that perhaps she is not in a persistent vegetative state, but rather, he says, a minimally conscious state.

So now tomorrow, by 12:00, Judge Greer, who is the trial court judge, who has been dealing with this case for seven years, is expected to rule on that request by the DCF to intervene. Now in the past, Judge Greer has refused the DCS requests, denied their requests. So if that happens, it is likely that it could be pushed up to the state district court, and then to the state supreme court. And they have lost those battles in the past as well -- Chris.

PIXLEY: And, John, in the middle of this battle, any sign of a thaw between these two families, the Schindlers and Michael Schiavo?

ZARRELLA: No, not at all. This has been a very, very bitter and divisive battle for a long, long time. I had an opportunity to sit down with the Schindlers about three and a half weeks ago and we talked. And they continued to say, we just want our daughter back. We don't know why Michael won't give us our daughter back. They don't understand it. He won't give them reasons why, they say. But of course, Michael Schiavo contends that he's absolutely carrying out Terri's wishes.

So, it has become extremely contentious. They do not talk with one another, even during the court proceedings -- Chris.

PIXLEY: And John, it's accurate to say that this doctor who has now sounded off on the state of Terri Schiavo's condition is not one of the doctors that was previously court-appointed, is that right?

ZARRELLA: Right, correct. I'm sure Dr. Gupta could address that as well, because, you know, there were court-appointed doctors, neurologists, there were doctors hired by Michael Schiavo, and, in fact, there were doctors hired by the family during 2003, back before the feeding tube was removed for the six days. And the ultimate decision coming out of that trial, out of that case, was that the overwhelming evidence at the time was that Terri was in a persistent vegetative state. And that ended up to be the ruling of the trial court judge, Judge Greer. Who then said, remove the feeding tube. And that's what happened when she was off the feeding tube for six days in 2003 -- Chris.

PIXLEY: OK, John, let me ask Dr. Sanjay Gupta about that. Sanjay, you're a neurosurgeon, Terri Schindler's parents say she's conscious. Two out of the five doctors ultimately that were appointed by the court said the same. How do we know that Terri Schiavo isn't in great pain right now?

DR. SANJAY GUPTA, CNN MEDICAL CORRESPONDENT: We don't. There's a couple of reasons. First of all, most of us have never seen Terri Schiavo, never examined Terri Schiavo, so we really can't say. And I don't say that to be trite, but a lot of people are making assumptions based at looking at four minutes of videotape over 15 years of a woman's life. So it's really hard to make these decisions.

Now regarding pain, if she's in a persistent vegetative state, there have been studies done to try and determine whether or not someone actually suffers from pain in that sort of situation. They've also done studies on people near the end of their lives to try and figure out if they could communicate, do they have pain from lack of feeding or lack of being hydrated. And they have actually found that you don't, you don't have the sort of pain you think you'd have from hunger, or thirst, and those sorts of things.

So, again, I don't know, Chris. And I'm a neurosurgeon, I've talked to my colleagues about this, not surprisingly a lot of people are talking about this, but nobody really knows, not even the people who have looked at these videotapes.

PIXLEY: And of course, obviously, it's very rare that you're going to have someone come out of this state, have someone survive having the tube removed and come back and talk about it.

GUPTA: I have done a lot of homework on this. And I specifically asked that question. I looked at a lot of medical journals. If someone is in a persistent vegetative state, there have been no documented cases of someone coming back. We're hearing a lot of stories now in the media about people waking up after 19 year coma, and this various sorts of stories, I've looked into a lot of these, they're not the same thing.

And again, I'm not trying to be pessimistic here, but rather saying that if people are in a true persistent vegetative state, and that is conclusive, I see no reports of people reversing that.

PIXLEY: Of course, Pat Boone, you have a different story. Your grandson emerged from a coma, has been able to talk to you about it. And of course, you're the voice of morality in this country. Why do you support the Schindler family the way you do?

PAT BOONE, CHRISTIAN SINGER: She's alive. She looks -- we've all seen it. When her mother or somebody who loves her talks to her, she turns to them, she smiles, she makes sounds as if she's trying to speak, respond to their questions. But the main thing is she's alive. And I -- I think about Thomas Jefferson who in the Declaration of Independence said, "we hold these truths to be self-evident, all mean are created equal and endowed by their creator with certain rights, among these, life, liberty and the pursuit of happiness."

She doesn't have much happiness right now, but she seems to be happiest, and it is noticeable, when her mom or somebody who loves her speaks to her. She does responds, turns toward the speaker. And, you know, doctors make their diagnoses and they do it with all their best intentions and best knowledge, but sometimes they're wrong.

They said the same thing about our grandson, Ryan. And we've been on this program a number of times and asked people to pray, and they did. And Ryan was diagnosed by his doctors as being in a permanent vegetative state on a respirator, never be able to breathe or talk or do anything. And they say, you better give some thought to how long you want to maintain him in this condition. In other words, when will you want to pull the plug?

If we had believed the doctor's diagnose and accepted it, we would be visiting Ryan in a cemetery now. But we didn't believe it, and we said to them, you're the medical team, we're the faith team, let's work together, and we have.

And you see pictures of Ryan, which really are maybe a year old. He's fought much further along. He's on a recumbent bike. He pedals himself. Use of both arms. He can wrap his arm around his mom and tell her he loves her. And he is coming back to us steadily.

And I think there are a couple of doctors who've spent ten hours with Terri, and they say that this -- this one doctor yesterday was on national television saying, I do not believe she's in a vegetative state. She's trying to talk, and if I were given the opportunity, I guarantee I could restore her speech.

PIXLEY: When we return, Pat, I'm going to ask you the tough question, what about Christians who are signing advanced directives now? We'll be back in a minute.

(BEGIN VIDEO CLIP)

J. BUSH: Terri is now going on her sixth day without food, or water. It is imperative that she be stabilized so that the Adult Protective Services team can fulfill their statutory duty and thoroughly review all of the facts surrounding her case. If there's any uncertainty, we should err on the side of protecting her.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARY SCHINDLER, TERRI SCHIAVO'S MOTHER: When I close my eyes at night, all I can see is Terri's face in front of me, dying, starving to death. Please, someone out there, stop this cruelty, stop the insanity. Please, let my daughter live.

(END VIDEO CLIP)

PIXLEY: We're back. I want to go back to Pat Boone.

Pat, do you have a sense that, while there are many Americans who feel, how can we possibly let Terri Schiavo die this way, they are at the same time saying to their loved ones, I wouldn't want to be kept alive under artificial means like this myself. What would you say to them?

BOONE: Well, if there is a written declaration, I think that's proper. If a person says in writing, don't keep me alive, particularly if they say artificially. In Terri's case, hers is not artificial. She's not on a respirator, she's not on any kind of machine, they're just giving her water and food. That's natural support. You and I have to have that or we die, so she's not being allowed to die. She is being put away, to put it mildly. You could say she's being killed. You take food and water away from a pet, an animal, and the SPCA will prosecute you. You might go to jail if you treat an animal the way Terri is being treated. She's not being allowed to die. She is being starved to death.

And if you have something in writing that you don't want to be kept alive artificially, well, I think that's your prerogative, but she never did that. And the judges have accepted hearsay, which to me seems not proper in a court of law, particularly when life and death is concerned.

PIXLEY: Even when it's the sanctity of the bond between husband and wife? The hearsay that they've received is from Michael Schiavo, her husband, who says she that did not want to be kept alive this way. Does that matter more than a statement she may have made to another family member or friend, something of that sort?

BOONE: I don't think so because we all make statements when we're younger, and she was in perfect health when she made -- if she made that statement -- perfect health. You know, the Beatles and the Rolling Stones, to use a sort of facetious but apt example, they said, years ago, we don't want to be singing rock-and-roll when we're 50. Well, they're over 60 now and they're still doing it, and -- people's ideas and intentions change.

I have a living will, a trust, and I have tried, my wife and I, to allocate our resources, our assets, you know, as we like, when we're gone, but that is revokable, it's changeable, and I bet you that every one of the judges ruling in these cases has a trust fund or a will or a trust, and it says, revokable, subject to change, at the will of the testdator (ph), and so -- poor Terri doesn't have that opportunity to say, wait a minute, I may have said something when I was 22 years old. I'm -- it's 15 years later, I'm alive. Look, I want to stay alive with my parents. She ought to be given that opportunity.

PIXLEY: I want to go to Congressman Smith for a minute. Congressman Smith, you were involved in the decision to allow your cancer-stricken father to be taken off of support, and yet you also have voted in favor of the House bill this past weekend to give Terri Schiavo's parents the right to sue to keep her alive. Can you explain the distinction?

REP. CHRIS SMITH (R), NEW JERSEY: There is a fundamental difference between somebody who has a terminal illness, is in the process of dying. Every effort was made to help my father. He had a major bit of surgery on his stomach, he had stomach cancer, he had ARDS, he had a cascading number of complications that only made him worse. There was no hope, the prognosis was no hope. Same way with my mother, who had brain cancer, and we actually put her in a hospice after she went through operations and 10-year battle, my wife and I and my brothers and my uncle all made these decisions, but it was only because there was no hope.

In this case we're talking about a situation where there seems to be a faulty diagnosis. You know, Dr. Shesher (ph) made the point in his seven-page statement today that the diagnosis appears to be faulty. I know there's at least 30 allegations of abuse and neglect that the Children and Families Department is looking at in Florida. This woman was denied what should have been her Americans with Disabilities Act protections and other protections. The possibility of rehab, speech pathology, and a whole host of other enhancements to her life. She was denied that since 1993. It is amazing that she has progressed the way she has without that kind of intervention.

She has been in a hospice for five years. Anyone who knows anything about a hospice knows that is a place that you go to die. And it's all about pain mitigation. If someone gets sick or gets pneumonia, they don't treat it, because you're in the process of dying because of cancer or some terminal disease. She has no terminal disease. She is a woman who probably was misdiagnosed. Dr. Hammesfahr has said so, this new Dr. Shesher who looked at her, spent 90 minutes with her, and came out with seven reasons in his sworn statement today why this appears to be a faulty diagnosis, including -- and it bears stating, her behavior was frequently context specific. She may have felt pain. That raises the ugly specter that she could be suffering without mercy right now in that hospice.

So the difference between terminally ill and the question of someone who is, in this case, has some brain injury, is fundamental. I chair the Alzheimer's caucus, I'm also co-chair of the -- two other caucus -- spina bifida -- there are handicapped people and severely handicapped people that some might construe to be a life not worth living. Those of us who believe human rights are for the disabled as well as everyone else, would object to that.

So, I really believe this is one of those cases. This is a case of disability rights. And I think when the full record is laid bare, a faulty diagnosis that led to a lack of treatment, there's culpability on the part of the judge, as well as on the part of Michael Schiavo, who, at best is a conflicted husband who is now living with another woman. I mean, what does that tell you?

PIXLEY: All right, all right.

SMITH: If you want your quarterback for care, someone who has your best interest exclusively at heart.

PIXLEY: OK, Congressman. After the break we're going to explore more of the legal issues. We'll be right back.

(BEGIN VIDEO CLIP)

MICHAEL SCHIAVO, TERRI SCHIAVO'S HUSBAND: This is what Terri wants. She does not want to be in this condition. She does not want to exist in this condition. And I'm going to carry out what she wanted.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: This is an extraordinary and sad case. And I believe that in a case such as this, the legislative branch, the executive branch ought to air on the side of life, which we have. And now we'll watch the courts make its decisions. But we look at all options from the executive branch perspective.

(END VIDEO CLIP)

PIXLEY: Welcome back, everyone. I'm Chris Pixley in for Larry King. I want to go straight out to Julian Epstein. Julian, you are the former chief counsel for the House Judiciary Committee. Of course, you've seen these issues arise before, but certainly nothing like this, never a House bill coming out of the middle of the night. I want to ask you, when you see this clip from President Clinton -- President Bush, you see also that we've had the Florida legislature, the Florida governor, every level of the United States courts involved, and now the United States president, who decides this issue? JULIAN EPSTEIN, FMR. CHIEF MINORITY COUNSEL, HOUSE JUDICIARY CMTE: Well, ultimately, it's the courts. Remember when President Bush was governor, he signed a bill that was not to dissimilar from the Florida statute, in which the Florida courts are deciding. This case, now, remember, has been through probably six -- 24 different court proceedings, through six or seven different courts, over 30 judges have heard this at this point.

It's a very difficult case for a number of reasons, including which the parents want to take over the care and feeding. But the fundamental issue at the state level is almost identical to the -- what the fundamental issue is at the federal issue. And that is whether or not we have a constitutional right to die. Under -- the Florida Constitution you do have a constitutional right to die with dignity. Under the Federal Constitution, the seminal (ph) Cruzan decision you have a constitutional right to die. That case has been affirmed by Justice Rehnquist, Scalia and others.

Now, what the courts found in Florida, whether you like it or not, agree or disagree with what their fact finding was, the courts found throughout repeated conditions that Schiavo's desire was not to have life-sustaining machinery. Now again, you may agree or disagree with that, but ultimately the courts have to decide that. And what the Congress did on Monday, early Monday morning, was to attempt to remove what has traditionally been a state court decision into the federal courts. And to do that through a procedure, which then gave the parents standing to sue.

Now, they showed me this language on Saturday when they were drafting it, and I said to the folks doing it that it wouldn't change anything. That this case would have little very chance of success in the federal courts, because you're essentially look at that same due process question.

Now, Congress could have done more if it wanted to, but they didn't. Congress could have gotten into the rules of evidence that you use in these kinds of case. Congress could have granted an immediate stay. If the goal was to kick the can down the road on this, then it was drafted pretty ineffectively.

But I think, ultimately, this case, as we were ready to go on air tonight, the 11th Circuit Court of Appeals, on a bar (ph) decision, which means it's the majority -- it's the entire court, majority of whom are Republicans, Bush-appointees, Reagan appointees, all said that this case -- all threw this case out. So the only chance this case really has, right now, with the exception of the Florida proceeding, I don't think that will bare much fruit, is the Supreme Court. And the Supreme Court's already rejected this.

But I don't think this is a case where there's good guys or bad guys. I was just telling Congressman Smith during the commercial break, these are very complicated issues. It is appropriate for the Congress to get involved to determine how we ought to do these things going forward, but the thing you can't change is the due process constitutional issue. The due process constitutional issue is that, if any of us decide we do not want life-sustaining equipment, we have a right to die in dignity. And the courts, whether you like it or not, made the decision that Schiavo wanted to die with dignity without life-sustaining equipment.

PIXLEY: OK. But doctor -- for Dr. Caplan, that's really the ultimate question, isn't it. Whether this decision has been made by Terri Schiavo or whether it's been made by others for her? You said that the time has come for Terri Schiavo to die. What do you mean by that?

ART CAPLAN, CHMN. DEPT. OF MEDICAL ETHICS, U. PENN: I mean that if you looked at that list of values we talked about, life, liberty, and the pursuit of happiness, when there isn't much opportunity for happiness. And I believe that because of all the trials and all the proceedings, bringing doctors in at the last minute and having them come around and make pronouncements, the trial courts have found, the Supreme Courts have found, the federal courts have found. And facts are there's no hope of recovery, no hope of happiness, then what counts as liberty?

I can't believe what I'm listening to with Congress, basically, trying to insert itself and say, we know better. We know what's right for her. Terri Schiavo told her husband, who she lived with for five years, that she wouldn't want to be in a state she considered unacceptable to her. Jehovah Witnesses' do it with blood transfusions. Christian Scientist do it with olive medicine. Sometimes people do it when they have cancer. Sometimes people do it when they have Lou Gehrig's Disease.

What Terri Schiavo said, unless you can disqualify that, and we haven't, so I accept it as fact, is don't keep me this way. Don't put me in this state. And have Congress sitting around in Washington, far from the actual facts, without hearings, without understanding the details of the case, trying to impose on her liberty. That is a sad thing to happen in these United States.

PIXLEY: OK. Well, when we get back, we'll talk to the doctor, Dr. Gupta, about whether or not there really is a basis for saying that Terri Schiavo is in a persistent vegetative state. Stay with us.

(BEGIN VIDEO CLIP)

J. BUSH: I'm doing everything within my power to make sure that Terri's afforded at least the same rights that criminals convicted of the most heinous crimes take for granted. If a prisoner comes forward with new DNA evidence 20 years after his conviction, suggesting his innocence, there is no doubt that the courts in our state or all across the country, for that matter, would immediately review his case. We should do no less for Terri Schiavo.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SCHIAVO: There's no happy ending. When Terri's wishes are carried out, it will be her wish. She'll be at peace. She'll be with the lord.

(END VIDEO CLIP)

PIXLEY: We're back. We're going to go straight out to CNN's Miami correspondent John Zarrella in Pinellas Park tonight. John, what's the last chance and is there any chance of further legal and political maneuvers in the next 24 hours?

ZARRELLA: Well, we're certainly waiting on the court here, the state court. Judge Greer, to rule on the DCF, and so that will be something we'll hear tomorrow at noon. So, that will be the legal action. And of course, the United States Supreme Court. And then after -- well, depending on what Judge Greer rules, of course, that could be kicked up to the district court and ultimately to the Florida Supreme Court. But, again, in the past, the Schindler's have lost appeals in those courts as well.

But I can tell you just a few minutes ago we had an opportunity to talk to a monsignor who accompanied the family when they did get in to see Terri. And he said that her tongue, her mouth, was still moist. It wasn't dry. And they did apply some Vaseline to her lips. But that she did not appear parched. And it's interesting because when I spoke with the Schindler's three weeks ago, and talked with them for about an hour, they had said -- Mary Schindler said to me, you know, in 2003 when they removed the feeding tube she was told all kinds of things to expect would happen to Terri as the days wore on.

And she said that back then, none of those things had happened in the first five to six days. And of course, now we are coming up on six days tomorrow, which, of course, is the longest that Terri Schiavo has ever been off the feeding tube. She was off it in 2001 for two days, and again in 2003 for the six days. And now approaching six days here in 2005 -- Chris.

PIXLEY: OK. And it seems she's still hanging on.

CNN senior medical correspondent, Sanjay Gupta.

Sanjay, it occurs to me this has to be a decision that is made in hospitals every day.

GUPTA: It is, and I don't think a lot of people realize that. I mean, if you look at the number of people in persistent vegetative state around the country, at least 10,000 people. Families have to make these difficult decisions every day. The difficulty here, mores so Chris, as you know, is the fact that the family doesn't really -- they're not really agreeing on the decision, so to speak, in items of what to do about this.

But yes, it is a form of life support, actually, a feeding tube. I know that's a difficult thing for people to really get their arms around, but a feeding tube, unless a person can actually eat themselves, they are being artificially kept alive, in a way. And that's how a lot of medical institutions, anyway you look at it. If you're taking something away in which they would otherwise die, that is a form of life support. That decision gets made every day in this country.

PIXLEY: And of course, Pat Boone, the only person really that's ever had this experience, faced it, had a family member in this situation. Pat, do you see parallels here, and do you believe there is reason, after 15 years, for Terri's family to hold out hope?

BOONE: Yes, because, A, there was a lady on television yesterday who was in the same shape as Terri, and they -- she was being starved and dehydrated for nine days. And there was a picture of her grimace. And she said she was -- while she was in that state, and they were not just letting her die, but causing her to die for the same reason, that she was screaming internally, please, I'm hungry, please, give me something to drink. She was in pain. The difference is that her husband was fighting for her life. In this case, Terri's husband is fighting to see her

die. And the big question is, did she ever really say what he says she said? And would she have changed her mind over these last 15 years? She never put anything in writing. We don't know what her will is at this point.

All we do see on the pictures that are on the screen right now are smiles, and a face that glows with what seems to be recognition and joy when someone she knows and loves is with her. And there are -- well, the doctor that was mentioned here earlier, a Noble Prize nominee, was with her for 10 hours and she is trying to speak. She is somewhat cognitive. And that if he is given the opportunity, he can bring her back -- bring her speech back. Now, I wonder...

PIXLEY: Let me ask Congressman Smith about that. Congressman Smith, there is this issue, the fight over what condition Terri's really in. We have doctors siding on -- doctors on all sides of this issue, really. And, of course, the five-doctor panel that has already reported back to the court. But is there any sense now with Congress getting involved, that you may be overstepping your boundaries here?

SMITH: Not at all. We have a duty to protect innocent human life, especially a disabled person. When mention was made of death with dignity, starving someone to death, who has according to Dr. Schenscher, who is the most recent neurologist to look at her, he was appointed by the state to do an independent analysis, and did he it.

And he actually says in his seven page report, I've changed my mind. And that's the most explosive piece of information to come out in recent days. Here's a neurologist who not only favors dehydration and starvation for persistent vegetative state patients, he now has changed his mind.

So I think we have an obligation to make sure that her rights are not in any way abridged. This is a disabled person who can't speak for herself. As Pat Boone said so well, you know, this is a hearsay statement by her husband, who's living with another woman, with children. That raises questions about objectivity. Added to that, the first time he manifested or said that she made this statement was seven years after the incident in 1990. So this wasn't something that came out initially or right away. Oh, yes, she said she would never want to be left on life support. And added to that, and I would hope everyone would read, who's interested in this seven-page sworn statement, the Dr. Schenscher makes the point that there are studies by -- in the journal of -- not New England.

The British Journal for Medicine, made the statement that very often there's a misdiagnose initially for persistent vegetative state. So, we have a situation where neurologists are conflicted, plus he points out, there have been major advances made recently where these patients could be helped. And he points out, there does remain some cerebral cortex.

PIXLEY: OK, let me ask Dr. Gupta.

SMITH: Dr. Hemisphere (ph), has made the same...

(CROSSTALK)

PIXLEY: Congressman, let me ask Dr. Gupta about that. Because the doctors have that have already looking, and of course, we're really disparaging the opinion of, obviously, an esteemed panel that has already been appointed by the court. Obviously, that panel came to widely varying decisions. This is almost like Bush v. Gore, it was a split decision. But one doctor said, that she had a flat EEG. And if that's the case...

GUPTA: Yes. And were the most outlandish things, really surprising doctor -- she's clearly not brain dead. I think, anybody, you don't have to be a doctor to figure that out. She is there in terms of her brain actually functioning to some extent, not a flat EEG.

On the other side, though, I heard a doctor say that she could be rehabilitated to the point where she only has some minor arm weakness. That's probably, I think, most would say too far the other way. Really sort of very polar opinions on this. But you've got to remember, Chris, there's no blood test, there's no brain scan for sure that will tell you for sure what her state is. This is a clinical diagnosis.

EPSTEIN: Chris, you know this is. The problem is..

GUPTA: This is an objective sort of thing.

(CROSSTALK)

EPSTEIN: This debate -- this debate is entirely missing the point.

PIXLEY: Is that Julian?

EPSTEIN: Yes. The debate is missing the point. The issue is not about the debate between neurologists about brain function and the ability to recover. The sole principle issue, and this is an issue in the courts now, is whether or not Terri Schiavo wanted to decline the use of life-saving equipment. That is a due process right that she has at the state and the federal level.

And in the absence of a written will, one rule -- and one lesson that all of us should learn from this, is that we should all have written wills, regardless of our age. But in the absence of a written will, the court preforms the function of a fact-finder. And the court, whether you like it or not, in our system the court is the arbitrator of last resort. The court's are the people that make these decisions on these facts. The court found that she did not want this life-sustaining equipment.

In terms of what Congress can do, Congress can't do very much about that because once that determination is made, she has a Constitutional right to die.

You know, the other point I just want to quickly make, I hope -- and I think Chris Smith is one of those members that has been remarkably consistent on this throughout the years. I have great admiration for him, but I hope we can show this kind of consistency on other issues. When it comes to questions of innocence of death row prisoners, for example, when there are real, legitimate issues about whether or not we're about to send somebody to the gas chamber who's innocent, a lot of time many of the people who supported this act say, oh, no, that's a state's issue, and when it comes to things like stem cell research, we're talking about whether we will develop the science for the neurological capability to be able to treat people who are in Schiavo's condition, many of the people that are pushing through the legislation on this were the very people who opposed things like stem cell research. So, I think, it's an important debate, but we should have...

(CROSSTALK)

PIXLEY: Let me break in.

(CROSSTALK)

PIXLEY: Let me break in. We're going to go to break. When we get back, we will get Congressman Smith's opinion on whether this is a legal issue with moral implications or a moral issue that the law has gotten in the way of. We'll be right back.

(BEGIN VIDEO CLIP)

BOBBY SCHINDLER, TERRI SCHIAVO'S BROTHER: Yes, she's been represented -- you know, in the media she's been portrayed as -- you know, I've seen anything from a coma to a vegetable, and I'm here to say my sister is very much alive, and she responds and she's alert, and she's -- right now she's speaking to us, and if we can just give her rehabilitation and therapy, there's doctors that believe she can improve significantly. It seems -- it's so frustrating for our family because the media is, you know, constantly reporting her condition, and there are so many doctors out there, more doctors on record that say she can be helped, than doctors that say she can't, and we just want a chance to give my sister rehabilitation therapy. (END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARY SCHINDLER: That's it. Put your head back. Is that okay? Huh? How do you feel? How do you feel? All right, hold on, sweetheart. How do you feel? Huh? What? That's my girl.

(END VIDEO CLIP)

PIXLEY: Welcome back.

We're going to go straight out to Philadelphia to Dr. Arthur Caplan.

Dr. Caplan, as a bioethicist, would anything change your mind about this case if you thought that there was a chance of recovery for Terri Schiavo?

CAPLAN: Sure I'd change my mind, but I have to say, what I've listened to so far in our discussion has me appalled. We're hearing people say there are doctors out there that can cure Terri, bring her back. There are 10 thousand people in permanent vegetative states, there are probably another 20 thousand with severe brain disabilities. Why are these people not going out and helping them? The answer is, they can't.

The last time I saw Dr. Emawar (ph) was on the web on "Quack- Watch." The facts here are beyond dispute. Poor Terri is not going to be able to recover. Medicine has nothing to help people with the kind of brain damage she has, and the facts are not in dispute. What we see is people unhappy with the Florida courts, and state courts have done a great job since Karen Ann Quinlan in 1976, handling family disputes. We got an answer here, to a case here that people didn't like, by a Congress that felt empowered to go in and meddle when local authorities have adequately handled this, and that's why this keeps getting affirmed...

SMITH: If I can respond --

: ... federal courts. So what we've got is basically mud- slinging, people trying to stir the facts up one more time, impune the character of Michael Schiavo, call him an adulterer, call him an abuser. The bottom line is this: there's no other place else to turn in intimate medical conditions except husband and wife. This fellow has stood up to the test of all the charges. He's had his claims confirmed. The facts are that she says, I don't want to be this way.

PIXLEY: Let me ask Congressman Smith about that.

CAPLAN: I don't want to have this tube.

PIXLEY: Congressman Smith, what are the chances of recovery for this woman, and what kind of life does Congress expect her to lead? What kind of life does...

SMITH: Well, first of all...

PIXLEY: ...the lawmakers that are changing the law at the last minute expect her to lead?

SMITH: To the best of my knowledge, Dr. Caplan has not gone down to Florida, has not gone in and done a hands-on review of her case. Neurologists who...

CAPLAN: No, but I believe the record from the trials...

SMITH: Neurologists who have -- neurologists who have -- the most recent being Dr. William Schenscher who was appointed by the state...

CAPLAN: Congressman...

SMITH: Let me finish.

CAPLAN: Congressman, please!

SMITH: ...who was appointed by the state of Florida to look into this, actually changed his mind after he looked at the facts. And for you to say in absolutist terms...

CAPLAN: You can shop all day for a doctor...

SMITH: ...she has no hope. Please let me finish.

CAPLAN: You can say what you want.

SMITH: Please let me finish, and then you can speak all you like. Two neurologists at least, and others as well, but two who have had hands-on look, including visiting the patient, have come to a completely different conclusion than some other neurologists, but this one is the most recent. He has said there's no PET scans, there have been other type of diagnostic tools that have not been used, and he has reversed himself in terms of this particular case, and he writes a seven-page single-spaced affidavit in which he claims...

CAPLAN: Congressman, if you took a CAT scan of her brain...

SMITH: ...she has the possibility of getting -- but you haven't looked at it.

CAPLAN: ...would you allow Terri to die?

SMITH: In absolutist terms...

CAPLAN: If you had that PET scan, would you allow the tube to come out? Would you? If you had a PET scan that said PVS, would it come out?

SMITH: That's a hypothetical. We go where the science...

CAPLAN: That's not a hypothetical. That's what you're asking for.

SMITH: Right now, right now, the science...

CAPLAN: If you had the picture, would you let it come out?

SMITH: ...and the scientists...

CAPLAN: Would you -- would you stop meddling?

SMITH: ...and the doctors strongly suggest -- meddling? We're trying to save an innocent disabled woman's life...

CAPLAN: I asked a very straight-forward question.

SMITH: ...from being starved to death.

CAPLAN: Would you let her go if there was this scan you're calling for?

PIXLEY: One at a time, one at a time.

SMITH: He has said, Dr. Schenscher...

PIXLEY: Let me go to Dr. Gupta for a moment here.

SMITH: ...a faulty diagnosis.

PIXLEY: What ultimately is full rehabilitation for Terri Schiavo? If she receives all the medical attention known to man, what can we expect?

GUPTA: I don't know. And, again, I don't say that to be trite, but I haven't seen her. I have not examined her myself. But -- I want to refer to this -- I have the seven-page affidavit that has been brought up so many times now.

When he says he's changing his mind, what he specifically says -- I'm reading from his particular affidavit -- he says, "having now reviewed the relevant facts, having met and observed Miss Schiavo in person, and having reflected on the moral and ethical issues," he changes his mind with regards to whether or not she should be fed. He's saying she should be fed, but he's not saying, at least not in this affidavit, that she is for sure not in a persistent vegetative state.

And a couple things here, with regard to persistent vegetative state, people are -- they do not track you, they do not look at you, for example, when you walk into a room. He says she does not do that. He says, she laughs but it's inconsistent, which can be a reflex, a brain stem reflex as well. I read through this. I'm a neurosurgeon, as you know, and I think he's done a good job here, but I don't think he's made the case that she's definitively not in a persistent vegetative state.

PIXLEY: When we come back from break, we'll get final thoughts from Pat Boone. Stay with us. (BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Her one eye rolls in on her, doesn't it? Huh? That one rolls in on you? We used to make fun? Do you remember that? We used to laugh at that? We used to get mommy all upset when you did that to her. You would take your eye and let it roll inside. Do you remember? Yes.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

PIXLEY: Welcome back, everyone. Thank you for being with us.

We're going back out to Los Angeles to Pat Boone. Pat, you've had the experience with doctors, you've heard all of the doctors here tonight. There certainly is a considerable amount of debate about Terri Schiavo's condition and her chance for recovery. What do the doctors tell you about your grandson, Ryan?

BOONE: You know, I love doctors. I'm grateful for doctors. They're wonderful. And we had good doctors, but there -- and the neurosurgeons at UCLA, they looked at Ryan's CAT scans and said, the two lobes of the brain are severed. There's no way he can have any motion. One side of the brain can't relate to the other, so it's hopeless. They were wrong.

Ryan is now -- if you go to ryansreach.com, you can be updated all the time on the progress he's making. They were just flat wrong.

Christopher Reeve, we greatly admire him, and he was a quadriplegic. He couldn't feed himself. He had to be fed through a tube, or his wife feeding him. We don't consider that artificial life support. It was the way he had to be nourished, and he was. And we all wanted him to be. He was a hero.

And then one last thing, there's a legal matter here, and that is, stuff we're just hearing in the last couple of days, when Terri, the 911 call went out, I guess it was Michael who made it. When the paramedics that came, they didn't like what they saw and they called the police. When the police came, their first instinct was to call it attempted homicide because they didn't like what they saw.

Later a doctor said it was a heart stoppage maybe caused by potassium imbalance, but there are things that need to be looked into as to why she is in the state she's in.

And I think -- I would love Americans to bombard the White House and ask the president for an executive order, which I think he has the legal right to do, an executive order of stay of execution until more evidence is examined.

PIXLEY: Let me ask Julian Epstein about that. Julian, Governor Jeb Bush, not the president, but the governor has said that he will do everything in his power to save Terri Schiavo, but what can he really do at this point? EPSTEIN: You can't do anything except change the constitution. Look, to respond quickly to Mr. Boone, 25 judicial proceedings have all said the chances of recovery are virtually nil. And they distinguish them from the cases that Mr. Boone speaks about.

But the central issue is the only way you could change what the outcome is going to be in the courts is if you change what due process means under the 14th amendment of the constitution. Due process means that if Terri does not want this medical treatment, she doesn't take it. It's her due process right which trumps everything else, and that's really ultimately the only thing that governs in this case.

So everything else we're talking about, at least from a legal point of view, is largely irrelevant.

PIXLEY: And the Congress doesn't have any say in this, ultimately, is your argument?

EPSTEIN: The only way Congress has a say in this is if it were to change the constitution. The other way it could at this is if it were to go around the edges, change rules of evidence, have automatic stays, all kinds of procedural things and evidentiary things Congress could do to influence the case. But I don't think Congress will go there. So ultimately -- I predict the congressional action will result in no change at all in the courts.

PIXLEY: Congressman Smith, will the House take up further measures in this?

SMITH: It may be to late, because we are on recess right now. It's not likely that we'll be called back. But I think the whole issue of incapacitated persons will be the subject of great scrutiny and debate. There are a number of people out there who are not in a persistent vegetative state, there's an open question as to whether or not they are, and we've got to make sure that handicapped, disabled persons are not deprived their ability to go on living by someone else who's quarterbacking their care or their lack of care.

And I would add to that, that this is a basic human rights abuse in the making. We're watching it unfold on CNN, on all the networks. It is horrific, in my view, to starve a woman who several neurologists say have brain function, has the ability to maybe even feel pain, as Dr. Hammersfeld (ph) found when he was doing a test a couple of years ago. And this seven page memo makes note of that. That's outrageous to think that she is suffering as she is being starved to death.

And this is a disability rights case. Congress, I think, will look at it much further, particularly in a more total way.

Let me also encourage people when they, maybe, sign a living will to read it carefully to make sure that everything that is said in that -- you know, the National Right to Life, Catholic Church, others have living wills that preclude denying food and sustenance to a person.

PIXLEY: Congressman, thank you. We're out of time. We want to thank out guests John Zarrella, Pat Boone, Arthur Caplan, Dr. Sanjay Gupta, Congressman Smith and Julian Epstein.

When we come back, we'll be turning it over to Aaron Brown with "NEWSNIGHT." Thanks for being with us.

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