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Schiavo’s Choice

Posted by Rick · March 25th, 2005 · 2 Comments

Andrew Cohen, writing for CBS News, has been writing some stunning articles over the last few days. I can’t say I’ve been a regular reader of his stuff; I’m a regular reader only of the authors of blogs I list on my main page. As for the mainstream media, I’ve taken to scanning CBS, CNN, the New York Times and occasionally ABC, but since so much of what they call “news” is already commentary, I don’t read any one of their commentators regularly.

I may start.

Peter Sean Bradley, over at Lex Communis has, perhaps with even more interest than me, been tracking a debate inspired by Terri Schiavo’s circumstances as well. For once, it looks as if America, if not it’s leaders, is having a real debate.

The thing is, we’re not all debating the same thing.

Bradley and Cohen are both smart, both lawyers and they’re both talking about Terri Schiavo. But they aren’t really talking about the same things. I’ve been reading and hearing things that lead me to believe that many Americans are at similar cross-purposes.

On the one “side” are those arguing for the life of Terri Schiavo. On the other are those arguing for the rule of law. Yet these are opposing sides in different debates. The concepts involved in these two debates are disjunctive, but not necessarily disjoint from one another; they overlap. And this, I think, partly explains why many don’t understand that they aren’t really participating in the same debate. There’s an elision between the two. To make matters worse, some people (including me) migrate betwixt the debates, sometimes not realizing they’ve done so. In this case, though, rather than cross-pollination, we get something more like what happened to Jeff Goldblum’s character, Seth Brundle, in The Fly, when his molecules were accidentally fused to those of a fly in a “telepod.” As with “Brundlefly,” the fusion of these two debates (with a third conceptual overlay to be discussed in another article) is anything but pretty.

It might be a little easier to see the differences if you consider the two following quotes.

[Of the two philosophies informing right-to-life discussions — functionalism and formalism — the formalist] says that being a human being is not only what one does, but also where one comes from. Fetuses and the extremely disabled are humans and are entitled to human rights because they were born of human parents. — Peter Sean Bradley, Comment #5 to
“Err on the side of life” and other ontological firewalls against the pragmatic utilitarians
(March 24, 2005; 1053 a.m.) Lex Communis.

Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn’t like the result in a particular case, it could swoop in and call a “do-over,” which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens — including disabled employees — out of federal court. — Andrew Cohen, “Trial by Legislation” (March 19, 2005) CBS News.

Apples and oranges.

So what happens is that you get some people arguing over the issues involving life. Peter Sean Bradley and the so-called “right-to-lifers” fall into that camp. Then there are other people who argue — regardless of questions concerning Terri Schiavo as an individual — that it’s not the place of Congress to step into this debate. Andrew Cohen seems to be primarily in that debate, as are large numbers of other Americans, including me.

In a sense, it’s not surprising that confusion reigns. This is essentially the same problem the right-to-lifers have with those who support a woman’s right to choose an abortion. The main difference is that with abortion, we’re talking about millions of potential human beings; in the Schiavo case, the fight is over one individual. (Another more minor difference is that we’re talking about pre-sentient beings in the first argument; post-sentient in the second.)

I’ve thought a lot about this over the last several days because of the fact that I have periodically been involved in both debates. And my personal view on things has left me in an odd-ball position. I disapprove abortion. I believe it’s an irresponsible and perhaps even inhuman method of birth control. I’ve also felt a great deal of empathy for — even if that hasn’t translated into agreement with — Terri Schiavo’s parents. Although I’m not a parent, I imagine losing a daughter is an indescribably painful event. And since it seems that the Schindlers don’t believe they’ve lost their daughter already, it must be even more painful to feel that they’re about to and that, from their point of view, it doesn’t have to happen. I am a husband. I can imagine that if I lost my wife…well, I don’t even want to think about it. I’d probably feel that my whole world had come to an end and I had fallen into hell.

Yet as odd as this is going to sound, I still support choice in all these circumstances. It is not my place to decide that every other American should live according to my sensibilities — or, if you prefer, sensitivities. This doesn’t change just because the collective of those who share my sensitivities might move the government to co-opt the choices of those who don’t. The fact that it’s not appropriate for me to make your critical life choices doesn’t change just because there’s more of “me.” Might does not make right.

If I thought the debate was only about the right-to-life movement and who gets to choose, I’d probably not have been paying as much attention to this. I certainly wouldn’t have written so much about it the last few days.

The thing that has held my attention is the boldness of this attack upon the rule of law by the right-to-life movement. For although I have no problem involving myself in both debates, if I had to choose which one is potentially the most destructive for society if the wrong choices are made, it would be the debate Cohen’s quote epitomizes.

And with that, I guess, I’ve left myself open for yet another (future) article. Or you could just go read Cohen. 😉

Articles Worth Reading

And for a related, but even scarier issue lurking behind all this:

Special thanks to my beautiful, smart and incredibly patient (she lives with me, don’t she?) wife, Denise Chaffee, for pointing out Frank Rich’s article.

Categories: Constitutional Issues


2 responses so far ↓

  • 1 Peter Sean Bradley // Mar 25, 2005 at 11:02 am

    Thanks for the kind comments, but I do have a few nits to pick.

    First, I am actually very interested in the legal dimension of this issue. I have had several posts over the last two years on how the evidence doesn’t fit the “clear and convincing evidence” standard that is required for this kind of decision. As a practicing attorney I have substantial experience with that kind of issue and I can’t imagine a judge ruling that the evidence in the Schiavo case met the requisite evidentiary standard.

    Please understand that my critique is based on the judicial decisions in the Schiave case, not the press releases, and I employ the same textual criticism that I deploy in other areas, so this is not some idiosyncratic “right to life” trope on my part. The truth is that I’ve been kicked out of court on better evidence under a weaker standard.

    The problem is that the legal system is imparting a lot of personal intuition into this area, which is understandable for the reasons that you and I both share. The effect is that the standard is not “clear and convincing.” It’s not even preponderance of the evidence. It’s something much lower.

    Hard cases make bad law. My concern as a lawyer and a citizen is that the precedents in Schiavo and similar cases will be imported into other related areas, to our eventual surprise. This kind of thing happens all the time in the law.

  • 2 Rick Horowitz // Mar 25, 2005 at 11:24 am

    I can’t imagine a judge ruling that the evidence in the Schiavo case met the requisite evidentiary standard.

    And, yet, this has happened in the Schiavo case somewhere between 19 and 22 times (including federal interventions now). This ought to be indicative of the rightness of the rulings, barring some exceptional showing (e.g., as the Schindlers seem to be now claiming, that all these judges are conspiring to kill their daughter).

    Hard cases do often make bad law. But the point here is that these cases should not be making certain laws at all. A perfect example is the way that Congress made law here. One law, affecting one person, never to have any precedential impact whatsoever, and skewed totally towards finding a way around the spirit of the “separation of powers” doctrine, if not actually the letter. (It should be noted that Congress has the right to confer jurisdiction on federal courts; it’s just never been done the way it was done here. Never.) Additionally, there can be no question that Congress was clearly and deliberately telegraphing what they wanted the result to be; i.e., which party should win the suit. Since when is that appropriate?

    And that’s what makes this a hard case.

    A great difficulty arises when even attorneys don’t understand the basic concepts of constitutional law. If the attorneys don’t get it, how can we expect the general public to get it?

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