I ate up all my blog-writing time responding to a comment posted to yesterday’s article “Between Schiavo and Charybdis,” so for that reason — and because of the length and issues dealt with in my response — I decided at the last minute to post my response as a free-standing post.
The comment read:
Wow! What I think everybody seems to be missing here is that we as a nation have had to sit back this week and watch the slow, agonizing, tortuous, and anything but dignified murder of a severely brain damaged woman simply because her husband would rather spout noble intentions and have her killed to assuage his guilt at wanting to move on, rather than give custody to the parents who created her. An injunction should issue anytime irreparable harm would ensue, and there are material facts in dispute over which one could prevail on the merits. There was plenty in dispute here. There were conflicting expert opinions, conflicting witness testimony, and a pile of money yet to be spent for care…or perhaps a ridiculous court battle that helps nobody. This woman wakes, sleeps, smiles, and by many accounts responds to external stimulus. She breathes on her own, which would not be possible with a “semi-liquified brain”. She was not hooked to a ventilator, nor IV meds or liquids. She only needed the feeding tube connected at feeding times. I know a child with Downs Syndrome in the same situation who is not much more responsive…should we murder him too? Perhaps he would not feel the pain…then again, how would we know if he could not tell us? This woman could sit up when strapped in her wheelchair, with eyes open in full consciousness. What we have witnessed this week is a travesty, judicial tyranny, and a black spot on the history of a nation which purports to hold personal rights in the highest regard. This woman was not allowed to observe Good Friday, or have last rights according to her religious faith. She was not allowed to have a moist cloth run over her face while she lay dying. How is this just? I am ashamed to be affiliated with our judiciary and our government this week. This is not a conservative, religious, separation of powers issue. This is a human rights issue, and we have failed this woman completely. I am sickened by the way our society has clamored for the death of a woman they never met, and how desensitized we have become. We are on a slippery slope with no end in sight. — Comment of “Sinclair” to “Between Schiavo and Charybdis” (March 27, 2005) Unspun™.
Let me try to tread carefully in responding to that comment, so as not to offend a friend. Hopefully, in the course of this comment, everyone will remember my own position is that I’m not sure removing Schiavo’s feeding tube is right.
If I read the email address correctly, “Sinclair” is someone I know to be a law student. I’m sure she’s had an opportunity to study civil procedure, constitutional law and a few other subjects touched on by her comment, even though she apparently missed the biology course in undergraduate school. 😉
Let’s take that easy one first.
She breathes on her own, which would not be possible with a “semi-liquified brain”. [sic] — Comment of “Sinclair” to “Between Schiavo and Charybdis” (March 27, 2005) Unspun™.
The published claim has been that her frontal lobe has been replaced by cerebrospinal fluid. Even an editorial in The Florida Catholic notes this.
The guardian’s experts and the court expert all testified that Terri’s cerebral cavity was filled with spinal fluid and there was no brain matter there. The parents’ two experts, taking a different tack than had been taken in the appellate court, testified that there were isolated brain cells in the spinal fluid, and that they would like to try to rejuvenate them.
They admitted that it had never been done before, but were willing to try to rejuvenate them. — Thomas A. Horkan, Jr., “Accuracy, teaching should enlighten Schiavo case” (March 18, 2005) The Florida Catholic.
Some people have talked of Terri’s frontal lobe having turned to mush. Regardless of how it’s characterized, the frontal lobe has virtually nothing to do with respiratory function. That’s handled by the brain stem. In the absence of — or even with significant damage to — parts of the brain that control higher cortical functions, the brain stem can and often does continue to function. Respiration would be unimpaired.
As to Last Rites, there’s a bit of disingenuity in this one. Here’s what CNN reports:
Additionally, Felos said that Schiavo received last rites, which includes Communion, the day the tube was removed, and that a court has ordered that she be able to receive the sacrament one more time before she dies.
Felos said no exact time for those rites has been set, but they would be administered by the hospice priest. — “Schindler’s lawyer: Legal fight near end” (March 26, 2005) CNN.
CBS News reports,
She received last rites and communion before the feeding tube was pulled. — “Schiavo Parents Ask Crowd To Go” (March 27, 2005) CBS News.
I won’t speculate on their reasons, but apparently the Schindlers wanted Terri to receive Last Rites again and that was refused. It’s not that she never received them.
As for the idea of “judicial tyranny” and the implied complaint that we are not “holding personal rights in the highest regard,” it’s difficult to reconcile these ideas with what actually happened. As I pointed out in “Between Schiavo and Charybdis,” the United States relies upon the rule of law, not of any individual. Turning to The Florida Catholic article again,
The basic facts in the Schiavo case were litigated for years in the circuit court in Pinellas County.
Both sides were ably represented by counsel, extensive testimony and records were introduced on the very matters now found in e-mails and blogs, and the court considered these in repeated trials and hearings. That court’s decisions were appealed any number of times by the parents, and were upheld.* * *
This was litigated vehemently by both sides. The only ones who have heard both sides of this case are the courts and they have rejected the claims now being so widely circulated. — Thomas A. Horkan, Jr., “Accuracy, teaching should enlighten Schiavo case” (March 18, 2005) The Florida Catholic.
As “Sinclair” noted,
An injunction should issue anytime irreparable harm would ensue, and there are material facts in dispute over which one could prevail on the merits. — Comment of “Sinclair” to “Between Schiavo and Charybdis” (March 27, 2005) Unspun™.
That’s exactly what the courts said, too.
The federal courts “followed traditional procedures about how to impose a stay. They had to decide whether the case would prevail on its merits. That is tried and true[.]” — “Courts prevail in U.S. right-to-die case” (March 24, 2005) Reuters.
And the determination was made that the Schindlers would not prevail on the merits. Therefore, the injunction did not issue. The rule regarding injunctions doesn’t say, “over which one might have a scintilla of hope of prevailing on the merits.” It doesn’t say “where, if one just keeps trying courthouses again and again in an ever-broadening range of jurisdictions, one might have a scintilla of hope that one could prevail.” So the court’s ruling on this is proper.
You would not want it any differently if it were you because, in fact, to do differently would result in ad hoc trampling of personal rights whenever the party in power held different views than you did regarding your personal rights. Political power swings back and forth; the law respecting your personal rights is, thankfully, somewhat less fluid.
There are a lot of things in the world with which we might all disagree. Some people, for example, believe that certain religious practices are wrong. Others don’t like some folks’ decisions regarding marriage — remember Loving v. Virginia (1967) 388 U.S. 1? Additionally, there are conflicts — sometimes breaking through into our judicial system — over the proper ways to discipline and/or raise children. Truth is, there are innumerable disagreements on a wide variety of human activities, both public and private.
We don’t want all these issues decided by someone other than ourselves, or our own nuclear families.
Furthermore, if we said that anytime we disagree with the courts, Congress or the Administration should be allowed to override the courts (and/or direct them to do it over until they come up with the result Congress or the Administration wants), then why not just dispense with the courts completely? Why not allow all disputes between individuals or groups to be brought before Congress, let the Administration decide, or — better yet, since the rule of law would no longer matter and we are nominally a democracy — everyone could just vote on these issues. Then, whatever the majority decides on an individual case, that’s what happens.
To call this a “human rights issue” is to make the phrase “human rights issue” meaningless. Maybe that explains so many people freaking out over the “human rights issue” after Terri Schiavo’s husband has successfully convinced the courts nearly 20 times now that his wife’s wishes were that she not be kept alive in this manner, while those same people see no human rights issues in not providing food to millions of other human beings. Maybe that’s why Americans are unconcerned about the indeterminate detentions — potentially life sentences — without charges being brought or the accused given a chance for a day in court, even for American citizens. Maybe that’s why other human rights abuses, like those that occurred at Abu Ghraib get, at most, an “oh, how terrible” reaction — but nothing like the battle that has been mounted over Terri Schiavo. It seems to me like there’s a little bit of selective “reasoning” going on here.
And maybe, in the end, that’s why we want to scream things like “judicial tyranny” and otherwise malign the judicial processes of this country. For, in the end, they are all that stands between us and ad hoc decisions regarding how critical issues get decided. But this is just craziness, insanity. Do you think that your own views are so mainstream, so well-accepted by the majority, that you’ll never have to worry about someone else disagreeing with your own choices? Let’s hope you’re so “lucky.” I would hate for you to need a court to enforce your rights against that majority after courts have been abolished for their perpetual exercise of what you have determined is “judicial tyranny.”
Thankfully, I have never had to face the kind of decision that Mr. Schiavo has faced: to enforce the painful decision his wife made for herself. I don’t know exactly what I’d do — I already know my wife has said she would not want to be kept alive under the conditions that have been described as existing for Mrs. Schiavo. Should I — since my wife has emphatically (in the wake of the Schiavo incident) made her wishes known to me — ignore my wife’s stated desire and keep her alive via feeding tube, if it ever comes to that? And what if, instead of a feeding tube, it turns out that she’s in a coma, everything else works fine, but she needs routine and un-ending dialysis?
Do you, in fact, know that Terri never told Michael what Michael says she told him? Numerous courts would disagree with you, but ignore the courts’ findings for the moment (since you wish to, anyway). It’s just your belief against Michael Schiavo’s word now. What if you’re wrong? What if Terri really said this to Michael? Does it change anything? Or is it still a “human rights issue” and Michael and the courts — and Terri — are violating those human rights?
6 responses so far ↓
1 newswriter // Mar 28, 2005 at 5:41 am
The News Writer feels the need to respond to sinclair’s comment as well, and hopes that she will remain sensitive to the sensitivities involved. Let us begin.
Wow! Where did you get this? Are you Michael Schiavo’s psychotherapist? If so, apparently you missed that Terri Schiavo not only told her husband but also told several other people that she would not want to be kept alive indefinitely by tubes and such. The News Writer does not see this as a murder but rather a sad, personal tragedy made even more so by the antics of extremist activists like Randall Terry who glory in such things. And she is in a hospice, the purpose of which is to make the final days and hours of a person as comfortable as possible. These cries of “torturous” and “agonizing” are quite disingenuous.
What Rick said. And all those conflicts were decided. “Expert opinion?” You mean from the charlatan “doctors” Randall Terry came up with who could say nothing more than “I have this idea that might work, but no I’ve never tried it, and no, nobody else has, and no, it’s not even my field anyway.” Even this latest, Dr. Cheshire — he’s a well known “right to life” physician, perfectly independent, right? No kidding this is a ridiculous court battle. And do you really think anything is left of the $750,000 awarded for Terri Schiavo’s care in 1993? Further, Michael Schiavo has twice turned down offers of more than $1 million to step away. And did you know that this whole mess began, surprisingly, right after the malpractice suit ($750,000 for Terri Schiavo’s care, $300,000 for Michael Schiavo because Terri is is wife) was settled and the Schindlers got nothing. The News Writer does not make the case that the Schindlers are the ones after money, but rather that that case could be made even more easily than claiming that position for Michael Schiavo.
You “know” this because you’ve seen a few seconds of video — heavily edited and promoted by the Schindlers and Randall Terry to support their position. The courts have watched much more video, not provided to news stations, and taken testimony from the doctors who have examined her (and not been compromised in some way), all of whom said what you see in those videos is not consciousness.
What Rick said. And the feeding tube was connected at all times.
Oh, come on. “Sit up when strapped in her wheel chair?” The News Writer can stand on her head with no hands when strapped to a wall too.
She already had last rights, before the feeding tube was removed. She received communion last night. And the “judicial tyranny” you report is upholding Terri Schiavo’s personal right not to live in this condition.
How do you know? Again, do you not know what a hospice is?
The News Writer is ashamed of Congress and the Bush brothers.
How could you possibly say that?
The News Writer is sickened by the way extremists have turned this personal and private matter into a spectacle, how they have twisted the issue and even lied about the issue to show their case in the best light. The News Writer thinks Michael Schiavo has been much more honorable, speaking softly during the rare times he does consent to an interview and pointedly not using pictures of his wife to make his case. Do you think he couldn’t? Honestly?
The News Writer knows of no one “clamoring” for the death of Terri Schiavo. Rick still has concerns for the morality of it, but the News Writer has no such qualms because for her, “morality” is about doing the right thing, and the right thing is what Terri Schiavo wanted done in this case. Terri Schiavo let it be known that she did not want to live like this. It must have been an excrutiating decision for Michael Schiavo to make, especially after he had become a respiratory therapist and moved in with the Schindlers to make caring for his wife as seamless as possible.
Knowing that a loved one has asked not to be kept alive in that way, it’s difficult to decide when to call it, when to say “that’s enough, she’s not coming back.” No one wants to make that decision. Michael Schiavo did, and for that you have, like so many others, vilified him. By all accounts, Michael and Terri Schiavo had a wonderful relationship and very much loved one another. It only makes sense that, once he’s reached that decision, he would want to see to it that her final wishes are carried out.
No, this is not a human rights issue, unless by “human rights” you mean unprecedented interference into private family matters by government, prodded on by extremist Christians and a grieving family that seems unable, or unwilling, to let go.
To them, the News Writer hopes that they soon get the psychological help they clearly need so desperately.
To Terri Schiavo, godspeed.
2 Rick Horowitz // Mar 28, 2005 at 8:03 am
It probably should be added, by the way, that people remove feeding tubes from other people frequently. I don’t know the exact numbers, but it’s been happening for probably as long as people have been getting feeding tubes. I know that in the late 1970s and early 1980s, when I was working in convalescent hospitals and, later, the cancer floor at Kaweah Delta Hospital in Visalia, California, people’s feeding tubes were removed when families requested it.
The Kansas City Star printed a story yesterday about Charles “Butch” Vanderhoff, who suffered a massive stroke. When he was connected to feeding tubes, but still alert enough to make the decision for himself, he cried when told nothing further could be done, but did not make a decision about what to do.
In the case of Juan-Torregosa v. Garcia (2002) Tenn.R.App.P.3, the mother and siblings of Engracia Torregosa Garcia sued because when Ms. Garcia was transferred to the Hospice, the Hospice did not insert a feeding tube. The Hospice said there was no hope of recovery. After a trial, the court ordered that a feeding tube be inserted. The St. Mary’s Health Care System (presumably Catholic, by the way) appealed.
On appeal, the Court, citing Cruzan v. Director of Missouri Health Dept. (1990) 497 U.S. 261, held that a person has a constitutional right to make a decision to accept or reject medical treatment, including nutrition and hydration. The Garcia Court found that Ms. Garcia would not wish to be subjected to artificial nutrition and hydration and ordered the feeding tube removed.
It’s worth noting that, in this case, the family wanted a feeding tube used. Ms. Garcia had left no Living Will. The Court found that Ms. Garcia would not have wished to be kept alive through artificial hydration and nutrition — against the family. (Even the Trial Court had found this true, by the way, but had ruled that Ms. Garcia failed to leave a Living Will, so her wishes could not be carried out when her parents objected. The Court on appeal disagreed.)
In addition to the above, literally hundreds of thousands of people are currently scrambling to make sure they have Living Wills that say things like “NO FEEDING TUBES!” in them. This is a response to what has happened with Terri Schiavo.
Newswriter is correct that I still have some moral qualms about this. It’s not because I think Michael Schiavo is wrong, though. It’s because I think maybe Terri Schiavo was wrong. I’m not sure that a person can determine, ahead of time, whether they would “want” to refuse feeding tubes. No one can know what it’s like to be Terri Schiavo right now — and that includes Terri Schiavo before she ended up in the state she’s in. I don’t have any doubts that the courts and Michael Schiavo have made the right decision, based upon what they know about what Terri wanted. My concern is that Terri could not have known, before it happened, how much consciousness and what kind of feelings she would have today. And for all we know, she’s inside herself right now trying to live.
And, if she’s “not there” — if, in some significant sense, she’s “already gone” — then I can’t see the point of removing the tube in the face of her parents’ objections. After all, if Terri is really already gone, then nothing that happens to Terri right now could possibly matter to Terri…right now. So at this point, anything that does happen to Terri happens for those who are alive. If that were the case, I think they should make the decision.
On the other hand, there’s no telling that Terri isn’t “inside” herself wishing to be free from her living hell, wishing people would honor the words she supposedly spoke so long ago.
For those alive, alert and conscious, it’s an agonizing decision. There’s just no getting around that.
But whatever it is, it is not the decision of the government. And under the law, Terri already made the decision and no one, except possibly her husband, can override that.
3 Peter Sean Bradley // Mar 31, 2005 at 12:57 pm
A few points:
Appropos of comments about Last Rites, you might be interested in learning that Last Rites, or Extreme Unction, or Annointing of the Sick, is not a “one time” sacrament, such as baptism, confirmation, holy orders and, theoretically, marriage. It is a sacrament that is available to any person who faces imminent death and as often as they face imminent death. So the notion that there is “no harm” in Terry Schiavo not receiving Viaticum in 2005 because she received it in 2003 makes a number of unwarrented assumptions.
According to Catholic doctrine, the Annointing of the Sick does more than absolve the recipient of sins. It also allows teh Church and the communion of saints to interede for the benefit of the sick person, provides union with Christ at the moment of passing, and provides the seed of eternal life.
Is any of that true? I think it is, but it wasn’t up to Judge Greer to weigh in on the theological issues. Greer, apparently, felt that it wasn’t important. But why should he? After all, he’s a Baptist and who – other than those “transitional pagans,” the RCs – believe that kind of “communion of saints” mumbo jumbo?
And that fact that Judge Gree, or anyone, could make a value judgment about the value in the sacrament of Annointing of Sick ties into the deeper issue about Greer’s major decision. Greer’s decision imported a great deal of value judgment about whether Terry Schiavo’s life was worth living and he decided that it wasn’t.
The procedure used in these cases is inherently designed for this kind of value smuggling. The procedure invokes a kind of “veil of ignorance” invented by John Rawls and asks what the reasonable person in that situation would do. It is not entirely surprising that any given judge finds that the reasonable person would do is what the judge would do.
The legal presumption is supposed to be in favor of life and require clear and convincing evidence to overturn that presumption. That a few “stray comments” in a few dissimilar situations by one conflicted witness and his siblings was held to constitute convincing evidence pretty clearly shows that there is no legal presumption in favor of life in Florida law.
That’s the big issue.
4 Rick Horowitz // Mar 31, 2005 at 1:20 pm
Unless I misunderstood things, it wasn’t in 2003 that she last received the Rites. I may have misread the story, but I understood that she had them recently, before removal of the tube. At any rate, as with other decisions regarding Schiavo right now, that one would seem to come under the purvue of her husband. Do we have to like his choices? No. And clearly many people don’t. But accusing Judge Greer of basing his decision upon his being a Baptist seems to me to be nothing more than character assassination which, frankly, I would have considered beneath you.
The “stray comments” have no doubt been carefully selected by both sides, but the law is currently on the side of the husband. Unless you’re willing to impeach the entire legal system (ignore, for the moment, the ideals of CA Rules of Professional Conduct 1-100(A), as well as paragraphs 5 and 6 of the preamble to the ABA Model Rules), this seems undeniable.
This is a difficult point for me to argue for the fact that I, like you, don’t personally approve of the decision to remove the tube. However, under our form of government, under our legal system and under the principles regarding freedom of individuals laid out by our Constitution, it was the correct legal decision.
There’s nothing to stop you, or anyone else, from changing the laws that govern medical choices that may or may not be made by individuals within the parameters of our legal system and consonant with our Constitution.
But the Rawlsian “veil of ignorance” has application beyond the value smuggling about which you’re concerned. The underground railroad running opposite to freedom just as readily allows unintentional smuggling of values inimical to the Constitution as it does those inimical to your moral perspective.
For regular citizens and citizen-attorneys, there is an obligation to support the principles of the Constitution, including the division of powers and, specifically, respect for each of the branches.
When you undermine societal respect for the judicial system — particularly when it appears to be following the law as written — you undermine the rule of law and, hence, the girders of freedom.
5 Peter Sean Bradley // Mar 31, 2005 at 10:03 pm
Rick,
My response:
First, you are in fact mistaken about when Terry received Last Rites. She received Last Rites in 2003. It was a big issue back then because that was when she was denied Last Rites. If you go through the Catholic blogs, including that of one of the priests who was ministering to Terry, you can confirm my point.
Second, you are silent about my real point about Last Rites. Assume that she received Last Rites in January of 2005. How does that change my essential point about the Catholic understanding of Last Rites at the point of her death. Who are you or Judge Greer or anyone to deny her Last Rites when she is truly at the threshold of death? The answer is that you are importing nothing but your value judgment into an issue you have no absolutely no competence to have a judgment. You’re not God. Unless, I’m mistaken, you’re not even Catholic.
Third, are seriously suggesting that I can’t critique this legal decision? Are you suggesting that I have surrendered my First Amendment rights by becoming a member of the Bar?
What kind of oppressive ploy is that? Did I not recently hear the Left complain about how patriotism was being used to stifle dissent about the Iraqi War? Is that simply another instance of leftist special pleading?
Amazingly, this argument was trotted out after the Dredd Scott decision.
Obviously, I can critique the Florida judicial decision. I am an American. I enjoy the First Amendment. I also follow in the tradition of Abraham Lincoln who acknowledged that while the Supreme Court had made a final irretrievable ruling in the Dredd Scott case, that horrendous decision was not binding in future cases.
Finally, are you really acknowledging value smuggling? Either this decision was value neutral or it was result oriented. If value smuggling is involved, I’d prefer that the values smuggled involve erring on the side of life and the weak and defenseless.
Once upon a time, the left used to agree with that last point.
6 Rick Horowitz // Mar 31, 2005 at 11:35 pm
My “silence” on your second point was because I apparently missed it. I assumed (you’ve pointed out that I’m wrong, which is entirely possible) that Terri had received Last Rites not long before a follow-up attempt at administering them was denied. Whether this was true (that she had received those Rites) or not, my comments were not intended as any lack of respect for Catholic religious beliefs; they were not intended to belittle those beliefs. The strongest thought I had about it was “how often do you have to ‘allow’ the rights to be given before Michael is entitled to say, ‘enough’?” (Based on your responses, I anticipate an answer saying that he’s never entitled to say that. And I disagree. And not because I have no respect for your beliefs. But I think that’s possibly an unbridgeable gap for us.)
As to your right to criticize the decision, I did not and do not suggest — seriously or otherwise — that you cannot criticize it. There’s a difference between criticizing a decision and impugning the Court’s approach to or motives in making the decision. The former happens all the time — and I do it, too. The latter may even be occasionally warranted, but I see nothing right now driving that except the neo-conservative goal to undermine the rule of law. Accusing Judge Greer of making the decision he made because he thought the Catholic view was unimportant, because according to you he was weighing in on the theological issues is what caused me to mention the professional codes of conduct.
Is your counter-argument that those codes are just so many words, without applicability?
Do I acknowledge value smuggling? I do. I also think it’s virtually unavoidable. The goal should be to avoid “smuggling” and make the endorsement of values express, so that rational decisions about the values can be made, but I doubt the goal is attainable. Value “smuggling” happens very often just because all decisions involve value assessments. And I don’t think anyone — including you and me — fully comprehends everything that informs their own assessments.
Your statement that “either this…or it was” posits a false dichotomy, though. For one thing, a “value neutral” decision is impossible. At the very least, the value of endorsing the law is going to be present. It will often be “smuggled” in, because it won’t be expressly stated by the court (perhaps because they think it too obvious) that they expressly intend that their decision be an endorsement of the law. And a decision that following the law has value is not “result-oriented,” unless by that you mean that the result to which the Court was oriented was endorsement of the law.
And that I wholeheartedly support.
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