Let Live or Let Die
Though I am very interested in the issues involved, I have tried to stay away from commenting on the Terri Schiavo case. But now that Congress has called its members back from Recess and Bush has left a vacation at his ranch to fly back to Washington in an effort to prolong her vegetative life further, my time has come to speak. Two branches of our Federal Government are in apoplexy over this while the third branch, the US Supreme Court, which actually has jurisdiction, has repeatedly said it is not a Federal matter. More immediate US Government mobilization is involved in the Schiavo case than was involved in the aftermath of 9/11.
I must warn you this is going to be a long article, but I have tried to bring a lot of thought and some measure of experience to it, so if you are interested in the subject, I encourage you to read the rest of what I have written.
This sad case began with a young woman who was much too heavy for her health. In the course of receiving medical attention, her eating disorder was not diagnosed. The undiagnosed disorder led to a chemical imbalance in her brain, resulting in her comatose state. The issue of medical responsibility was resolved in the proper forum, the Florida courts, where a jury found medical negligence and determined the amount of damages, which they reduced because of the contributory negligence of Terri. These issues of weight concerns, eating disorders and the degree to which the medical community is addressing them adequately are rarely discussed in connection with this case, even though they are extremely important issues and they were the genesis of this matter.
Court appointed medical experts have examined Terri and her medical history and have determined that she is in a persistent vegetative state with no chance of recovery. For 15 years and through many court proceedings, all viewpoints have been heard many times and all evidence has been examined, proper rulings have been made and all appeals taken and determined. This is the way our system of laws works, through the judicial branch where it properly belongs. The system has worked and has spoken, all the way up to the US Supreme Court. The system has found that Terri did not want to be kept alive in such a vegetative state and did not want to be fed through a tube to keep her alive.
At this point I want to call your attention to something to watch for if you are a TV news viewer. Very often, when stories are being reported on this case, file footage is being shown of Terri and other people trying to interact with her. I am not sure how many different shots there are and I will be watching to keep count, but I know there are at least two. In the one I recall seeing the most, Terri seems to be smiling and looking at the other person and maybe even almost nodding as if in some kind of acknowledgment. In another shot, she seems much less animated and more out of it. What is missing on the footage is any date. I think the media is being irresponsible by not determining the date the footage was shot and including that date on the screen every time the footage is shown. I suspect in particular that the more optimistic footage is something taken many years ago and provided to the media by her parents.
Florida Governor Jeb Bush and State legislators in Florida previously injected themselves into this case by passing a special law to interfere with the proper role of the Florida judicial branch and in effect make themselves a replacement court. These officials claimed they were acting out of some sort of extreme conscientious objection. But what were they objecting to? Being astute politicians, they were objecting to what an activated segment of their voter base was objecting to, that is, to every extraordinary means not being used to keep Terri alive in this persistent vegetative state until God decides whether she should die or be saved by a miracle.
As Americans, we are entitled to believe in God but we are still required to follow the law of the land. It is not against the law to believe in Divine Intervention, but it is against the law of the land for a Governor and State Legislature to intervene as if they were divine. They had no business doing so and in my opinion their intervention was so egregiously in violation of the Florida state constitution as to be grounds for a claim that they violated their oaths to support, protect and defend the Florida constitution. The Florida Supreme Court quickly did its job and threw this bogus law out, and the U.S. Supreme Court correctly decided to let the ruling of the Florida Supreme Court stand.
Who are these activated voters, clamoring for political intervention? They claim to be religious people, but I wonder if they have more faith in getting what they want by leaning on politicians rather than by praying to God. They want abortions to be non-existent and life to be prolonged, even in a persistent vegetative state. They call themselves pro life, but their entire focus seems to be only on the beginning and ending of life, ignoring many matters affecting the quality of life in the time between birth and death. Critics might label them "pro-birth and pro-persistent vegetative state".
Politicians involved in appeasing this group of voters use all their tricks of political rhetoric. One trick unique to this issue is to say, "There should be a presumption in favor of life". Well, there already is. People are presumed to want to live, but the presumption can be rebutted by competent evidence to the contrary. In the Schiavo case, the courts have determined, based on competent evidence, that Terri did not want to be kept alive if she was ever in a persistent, vegetative state. Here’s where my experience enters. I have talked to thousands of people over the many years I was a lawyer, asking them about their intentions if they ever became in a persistent vegetative state, and every one of them told me the same thing, they would want to be allowed to die without using such means as force feeding. If you have ever been asked this question I expect your answer would be the same. And if you have not yet been asked, then ask yourself now.
Congress fell all over itself repeating the impropriety of the Florida Legislature, and George followed Jeb’s lead in signing special legislation designed to only affect Terri and to attempt to change the outcome of a matter that had already been resolved through the process of the judicial branch, which is where it properly belongs. This law is specifically limited to creating a personal right in Terri’s parents to go to the Federal Court for the Middle District of Florida to "protect the rights"of Terri "under the Constitution and laws of the Unites States relating to the withholding and withdrawal of food, fluids or other medical treatment necessary to sustain life". I don’t know that there have been any such Federal rights established. Congress did not refer to any in the body of this law and in fact said that it should consider such rights in the current session - so Congress admitted it put the cart before the horse in passing this special law.
This special law was passed with the obvious purpose of placing a new legal hurdle in the way of Terri’s right to be allowed to die as the courts have determined she said she wanted. Even though the new law has no citation of any actual Federal right for Terri to be kept alive, this special Federal law seems to have been intended to empower a Federal Judge to order her feeding tube re-inserted while the question of whether or not there are any such Federal rights is determined., which could take a long time, especially when appeals all the way up to the US Supreme Court are included.
I don’t claim to be a scholar of Constitutional law and have not researched the issues involved in this new, special Federal Law. My first inclination, however, is to think Congress has no specific power under the Federal Constitution to legislate, either in general or in a specific case, on these death issues and so therefore the power to do so is reserved to the States under the 10th Amendment of the Bill of Rights. Argument could be made that Congress has the power under the "general welfare" provision, but a law that only applies to one person does not seem to me to be a general welfare law. Others have said this new law may violate constitutional principles of equal protection, due process and separation of powers.
Some Republicans in the Senate circulated a talking points memo saying this was a great issue to excite the pro life base and to play politics with the Democrats and especially Senator Nelson from Florida. A few members of the House had the integrity to cast deserved shame on the Congress for this travesty of justice. The worst offenders in Congress were the ones behind the grandstand stunt of subpoenaing Terri to testify before Congress. If these people were sincerely concerned about Terri, they would go to Florida and see first hand what her life is like in a persistent vegetative state. Terri’s case has been going on for 15 years and before Terri there have been many others in similar circumstances, yet Congress is only now deciding this is something on which they "should consider"adopting policies. In spite of not having any policies though, Congress still rushed to inject itself into Terri’s case. The most crass members of Congress are likely thinking that even if this law is declared unconstitutional, they can blame Terri’s death on the Courts and say that they tried to save her.
A hearing before a Federal Judge in Florida was just held under this new law and the Judge listened to arguments from lawyers for both sides and is now considering what to do. He has not ordered the feeding tube reinserted and one of the first issues he must decide is whether this new law is unconstitutional. Because the law was just passed, the judge may request the parties to submit briefs on the constitutional issue in the next few days. With the feeding tube out, Terri could die in the next week or two, possibly before the Judge issues any definitive ruling.
Maybe every activated voter and every politician who wants to keep Terri Schiavo alive for possible Divine Intervention should be challenged to put their pens where there mouths are - to sign a legal document saying that if they ever are in a persistent vegetative state, they want to be kept alive by all extraordinary means, including being fed through a tube inserted into their throat.
I must warn you this is going to be a long article, but I have tried to bring a lot of thought and some measure of experience to it, so if you are interested in the subject, I encourage you to read the rest of what I have written.
This sad case began with a young woman who was much too heavy for her health. In the course of receiving medical attention, her eating disorder was not diagnosed. The undiagnosed disorder led to a chemical imbalance in her brain, resulting in her comatose state. The issue of medical responsibility was resolved in the proper forum, the Florida courts, where a jury found medical negligence and determined the amount of damages, which they reduced because of the contributory negligence of Terri. These issues of weight concerns, eating disorders and the degree to which the medical community is addressing them adequately are rarely discussed in connection with this case, even though they are extremely important issues and they were the genesis of this matter.
Court appointed medical experts have examined Terri and her medical history and have determined that she is in a persistent vegetative state with no chance of recovery. For 15 years and through many court proceedings, all viewpoints have been heard many times and all evidence has been examined, proper rulings have been made and all appeals taken and determined. This is the way our system of laws works, through the judicial branch where it properly belongs. The system has worked and has spoken, all the way up to the US Supreme Court. The system has found that Terri did not want to be kept alive in such a vegetative state and did not want to be fed through a tube to keep her alive.
At this point I want to call your attention to something to watch for if you are a TV news viewer. Very often, when stories are being reported on this case, file footage is being shown of Terri and other people trying to interact with her. I am not sure how many different shots there are and I will be watching to keep count, but I know there are at least two. In the one I recall seeing the most, Terri seems to be smiling and looking at the other person and maybe even almost nodding as if in some kind of acknowledgment. In another shot, she seems much less animated and more out of it. What is missing on the footage is any date. I think the media is being irresponsible by not determining the date the footage was shot and including that date on the screen every time the footage is shown. I suspect in particular that the more optimistic footage is something taken many years ago and provided to the media by her parents.
Florida Governor Jeb Bush and State legislators in Florida previously injected themselves into this case by passing a special law to interfere with the proper role of the Florida judicial branch and in effect make themselves a replacement court. These officials claimed they were acting out of some sort of extreme conscientious objection. But what were they objecting to? Being astute politicians, they were objecting to what an activated segment of their voter base was objecting to, that is, to every extraordinary means not being used to keep Terri alive in this persistent vegetative state until God decides whether she should die or be saved by a miracle.
As Americans, we are entitled to believe in God but we are still required to follow the law of the land. It is not against the law to believe in Divine Intervention, but it is against the law of the land for a Governor and State Legislature to intervene as if they were divine. They had no business doing so and in my opinion their intervention was so egregiously in violation of the Florida state constitution as to be grounds for a claim that they violated their oaths to support, protect and defend the Florida constitution. The Florida Supreme Court quickly did its job and threw this bogus law out, and the U.S. Supreme Court correctly decided to let the ruling of the Florida Supreme Court stand.
Who are these activated voters, clamoring for political intervention? They claim to be religious people, but I wonder if they have more faith in getting what they want by leaning on politicians rather than by praying to God. They want abortions to be non-existent and life to be prolonged, even in a persistent vegetative state. They call themselves pro life, but their entire focus seems to be only on the beginning and ending of life, ignoring many matters affecting the quality of life in the time between birth and death. Critics might label them "pro-birth and pro-persistent vegetative state".
Politicians involved in appeasing this group of voters use all their tricks of political rhetoric. One trick unique to this issue is to say, "There should be a presumption in favor of life". Well, there already is. People are presumed to want to live, but the presumption can be rebutted by competent evidence to the contrary. In the Schiavo case, the courts have determined, based on competent evidence, that Terri did not want to be kept alive if she was ever in a persistent, vegetative state. Here’s where my experience enters. I have talked to thousands of people over the many years I was a lawyer, asking them about their intentions if they ever became in a persistent vegetative state, and every one of them told me the same thing, they would want to be allowed to die without using such means as force feeding. If you have ever been asked this question I expect your answer would be the same. And if you have not yet been asked, then ask yourself now.
Congress fell all over itself repeating the impropriety of the Florida Legislature, and George followed Jeb’s lead in signing special legislation designed to only affect Terri and to attempt to change the outcome of a matter that had already been resolved through the process of the judicial branch, which is where it properly belongs. This law is specifically limited to creating a personal right in Terri’s parents to go to the Federal Court for the Middle District of Florida to "protect the rights"of Terri "under the Constitution and laws of the Unites States relating to the withholding and withdrawal of food, fluids or other medical treatment necessary to sustain life". I don’t know that there have been any such Federal rights established. Congress did not refer to any in the body of this law and in fact said that it should consider such rights in the current session - so Congress admitted it put the cart before the horse in passing this special law.
This special law was passed with the obvious purpose of placing a new legal hurdle in the way of Terri’s right to be allowed to die as the courts have determined she said she wanted. Even though the new law has no citation of any actual Federal right for Terri to be kept alive, this special Federal law seems to have been intended to empower a Federal Judge to order her feeding tube re-inserted while the question of whether or not there are any such Federal rights is determined., which could take a long time, especially when appeals all the way up to the US Supreme Court are included.
I don’t claim to be a scholar of Constitutional law and have not researched the issues involved in this new, special Federal Law. My first inclination, however, is to think Congress has no specific power under the Federal Constitution to legislate, either in general or in a specific case, on these death issues and so therefore the power to do so is reserved to the States under the 10th Amendment of the Bill of Rights. Argument could be made that Congress has the power under the "general welfare" provision, but a law that only applies to one person does not seem to me to be a general welfare law. Others have said this new law may violate constitutional principles of equal protection, due process and separation of powers.
Some Republicans in the Senate circulated a talking points memo saying this was a great issue to excite the pro life base and to play politics with the Democrats and especially Senator Nelson from Florida. A few members of the House had the integrity to cast deserved shame on the Congress for this travesty of justice. The worst offenders in Congress were the ones behind the grandstand stunt of subpoenaing Terri to testify before Congress. If these people were sincerely concerned about Terri, they would go to Florida and see first hand what her life is like in a persistent vegetative state. Terri’s case has been going on for 15 years and before Terri there have been many others in similar circumstances, yet Congress is only now deciding this is something on which they "should consider"adopting policies. In spite of not having any policies though, Congress still rushed to inject itself into Terri’s case. The most crass members of Congress are likely thinking that even if this law is declared unconstitutional, they can blame Terri’s death on the Courts and say that they tried to save her.
A hearing before a Federal Judge in Florida was just held under this new law and the Judge listened to arguments from lawyers for both sides and is now considering what to do. He has not ordered the feeding tube reinserted and one of the first issues he must decide is whether this new law is unconstitutional. Because the law was just passed, the judge may request the parties to submit briefs on the constitutional issue in the next few days. With the feeding tube out, Terri could die in the next week or two, possibly before the Judge issues any definitive ruling.
Maybe every activated voter and every politician who wants to keep Terri Schiavo alive for possible Divine Intervention should be challenged to put their pens where there mouths are - to sign a legal document saying that if they ever are in a persistent vegetative state, they want to be kept alive by all extraordinary means, including being fed through a tube inserted into their throat.
posted by Tom Blake | 10:16 PM
2 Comments:
Here is an article from the Seattle Times wherein Dr. James Bernat, past Chair of the American Academy of Neurology's Ethics, Law and Humanity Committee explains how people can mistakenly believe a person in a persistent vegetative state is being responsive.
Tom,
Now that the story is finally over, I think this is a case where the rule of law won out. Despite pressure from some of the most powerful politicians, religious leaders, and, of course, the media, the courts stuck to their business and did what was right. This case restores some credibility of our legal system in a state where the Supreme Court meddled unconscienably five years ago.
John from Phoenix
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