Saturday, March 26, 2005

The Root of the Disaster in Pinellas Park, Florida

It is a beautiful day here in Southern New England. It's sunny as can be, and warmer than it has been. The snow is finally melting away, but even with these wonderful and uplifting signs and the elevation it brings to the spirit, I am in a swoon of deep doldrums.

Suffice it to say that I have no purpose to continue to write solely about the issue of Terri Schiavo; I am indeed ready to start writing about other things, but I find myself compelled to focus on this matter. My mind is transfixed on it, the whole thing permeated with the stench of spousal guile soaked in a sulphuric bath of raw, judicial imperialism.

Here you have parents and sibblings willing to sacrifice all, take Terri away, if necessary, never to bother a soul again, including her husband, who is, for all intents and purposes, already moved on with another (albeit common law) wife, and kids. Yet, yet, he is the one, and not the caring parents or sister or brother, whom the courts have let determine the fate of this poor young woman.

Yes, I believe in leave and cleave, but he left and cleft a long time ago, and should have no say in Terri's fate at this point, especially life-and-death say over her at this point.

It just makes me boil.

For what it is worth, I am in good company. The blogs are abound with stories related to this issue. One of note via Galley Slaves in the Weekly Standard: "How Liberalism Failed Terri Schiavo"


First, writer Eric Cohen recalls the basic facts on the ground:
In February 1990, a sudden loss of oxygen to the brain left Theresa Marie Schiavo in a coma and eventually in a profoundly incapacitated state. Terri's husband, Michael Schiavo, took care of her, working alongside Terri's parents. He took her to numerous doctors; he pursued experimental treatments; he sought at least some modest restoration of her self-awareness. In November 1992, he testified at a malpractice hearing that he would care for Terri for the rest of her life, that he "wouldn't trade her for the world," that he was going to nursing school to become a better caregiver. He explicitly reaffirmed his marriage vow, "through sickness, in health."

But the lonely husband eventually began seeing other women. His frustration with his wife's lack of improvement seemed to grow. When Terri suffered a urinary tract infection in the summer of 1993 [12 years ago!], he decided to cease all treatment, believing that her time to die had come, that this was what Terri would have wanted. But Terri's caregivers refused to let her die, and Michael Schiavo relented--for the time being. Not all Terri's doctors, however, saw their medical obligation in the same way; one physician declared that Terri had basically been dead for years, and told Michael that he should remove her feeding tube. Michael responded that he "couldn't do that to Terri," that he could never leave his wife to die of dehydration. But at some point, his heart changed. He decided that it was time for her final exit and his new beginning. He decided that his own wishes--for children, for a new family, for new love unclouded by old obligations--were also her wishes. He decided that she had a right to die and that he had a right to let her die.
Cohen then isolates the two primary questions in the case:
First, what would Terri Schiavo have wanted? Would she want to die rather than live in a profoundly incapacitated condition? Was Michael Schiavo's decision to remove her feeding tube an act of fidelity to his wife's prior wishes or an act of betrayal of the woman entrusted to his care? Second, what was Terri Schiavo's precise medical condition?

The right to have medical treatment withheld on one's behalf was codified in a string of legal cases over the last few decades. Ideally, the individual's wishes would be laid out in an advance directive or living will, describing in detail what kind of care a person would want under various conditions. This is procedural liberalism's ideal of autonomy in action: The caregiver simply executes the dependent person's prior orders, like a lawyer representing his client. But even persons without living wills still have a legal right to have their wishes respected, so long as those wishes can be discovered. Each state establishes specific criteria and procedures for adjudicating the incompetent individual's wishes in cases where these wishes are not clear, especially when there is a dispute between family members (as in the Schiavo case) or between the family and the doctors.

Under the law of Florida, where the Schiavo case was adjudicated, the patient's prior wishes must be demonstrated with "clear and convincing evidence"--the highest standard of legal certainty in civil cases. In cases where this standard of proof is not met, the court must "err on the side of life," on the assumption that most people, even those who are profoundly disabled, would choose life rather than death. In other words, the state is not supposed to judge the comparative worth of different human beings, but to protect the right of individuals to decide for themselves when their lives would still have meaning. And in cases where the individual's wishes are uncertain, the state of Florida is charged to remain neutral by not imposing death. This is the aim of procedural liberalism--and this is where things went terribly wrong in the Schiavo case.

With scant evidence, a Florida district court concluded that Terri Schiavo would clearly choose death over life in a profoundly incapacitated state.
But read the entire piece.

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