Terry Schiavo And Judicial Activism

by hilzoy

There are many aspects of the Terri Schiavo case about which I do not have clear views. (My original post on this topic seems to have given people the impression that I did; but what I was really trying to do in that post was just to say what I took the relevant issues to be, since I thought they had been mischaracterized.) I have no views about the characters of the principals in the case, since I don't know them, and since in general I try not to leap to conclusions about people based on their conduct when they are grieving. I have no knowledge of what Terri Schiavo would have wanted other than that summarized in the various decisions on that topic. In general, all the information I have about the actual facts of the case is derived from court documents and some media reports; and that leaves me thinking that one of the few things I can be certain of is that when it comes to those facts, I am not in a particularly good position to judge.

But there are some things I do feel more confident of, since they do not depend on factual matters of which I am ignorant. And one of them is this: the judges in this case have followed the law. I am not a lawyer, of course. But I have read the decisions and statutes, and it seems pretty clear to me that the law has been followed. Moreover, as I said somewhere, no one that I know of has questioned the competence of the lawyers or the number of appeals that the various parties have received. Below the fold I will detail the statutes bearing on the central points at issue, so that those who are lawyers can let me know whether I am wrong. (I'm putting this part later because it is long.)

If I am right about this, then there's something that really puzzles me, namely: why are so many conservatives saying that this case is about judicial activism? Here's Bill Kristol: "Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a "robed charade," to rise up against our robed masters, and choose to govern ourselves. Call it Terri's revolution." Here's Ann Coulter: "What was supposed to be the "least dangerous" branch has become the most dangerous – literally to the point of ordering an innocent American woman to die, and willfully disregarding congressional subpoenas. They can't be stopped – solely because the entire country has agreed to treat the pronouncements of former ambulance-chasers as the word of God." Thomas Sowell: "Judges who ignore the laws passed by elected representatives are slowly but surely replacing democracy with judicial rule." Alan Keyes: "Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches in order to assert an exclusive and tyrannical control of public standards and conduct." And those are just the quotes I found first, without even canvassing the blogs.

In some cases, I think it's because the courts did not grant a temporary restraining order despite Congress' intervention. (More on that below.) But in some cases -- for instance, in the Coulter quote above -- the idea seems to be that this entire case is the result of renegade judges. And if I'm right about the law, then this is completely wrong. There are all sorts of features of existing Florida law which one might argue in favor of changing. But the people to whom such arguments should be addressed are the legislators, not the judges. No one who rejects judicial activism should say, with John Gibson of Fox News, that our chief executives should "protest the complete disregard courts and judges have shown here, in this case, for facts outside the law." (Emphasis added.)

As I see it, in this case the judges have stuck to the law scrupulously, despite enormous political pressure. (Surely it has occurred to some of them that their chances of being appointed to a higher judgeship by the Bush administration have gone glimmering.) Their job is to interpret the law, and they have done so. For this they deserve our thanks, not our condemnation. For while I have a different view of interpretation than, say, Sebastian, and thus disagree with him about how to draw the line between interpreting a law and rewriting it, I am as convinced as he is that judges should be in the business of interpreting existing laws, not writing new ones. And it seems to me that that is what the judges in this case have done. As Matt Conigliaro of Abstract Appeal wrote:

"I receive email after email telling me that no judge has the authority to end someone's life. That life must be preserved where there is even unreasonable hope, or where there is any uncertainty regarding the person's wishes. That oral evidence can never be clear and convincing. That removing "life support" is okay, but removing a feeding tube is barbaric and unacceptable. Perhaps those sentiments are noble, but they are not the law, and it was not within Judge Greer's power to make them the law. It is perfectly acceptable to disagree with the law on these points, but to condemn the judge for following the law as it exists is irresponsible and contrary to the basic principles on which our government, with its separate branches, was created."

Moreover, we should absolutely not urge either citizens or politicians to defy them, as the following commentators do:

William Kristol, already quoted: "Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a "robed charade," to rise up against our robed masters, and choose to govern ourselves. Call it Terri's revolution."

John Gibson, Fox News: "So Jeb, call out the troops, storm the Bastille and tell 'em I sent you."

Bill Bennett: "It is a mistake to believe that the courts have the ultimate say as to what a constitution means. (...) It is time, therefore, for Governor Bush to execute the law and protect her rights, and, in turn, he should take responsibility for his actions. Using the state police powers, Governor Bush can order the feeding tube reinserted. His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less."

Ann Coulter: "As a practical matter, courts will generally have the last word in interpreting the law because courts decide cases. But that's a pragmatic point. There is nothing in the law, the Constitution or the concept of "federalism" that mandates giving courts the last word. Other public officials, including governors and presidents, are sworn to uphold the law, too. (...) Just once, we need an elected official to stand up to a clearly incorrect ruling by a court. Any incorrect ruling will do, but my vote is for a state court that has ordered a disabled woman to be starved to death at the request of her adulterous husband."

Alan Keyes: "When time is of the essence, necessity authorizes the executive to safeguard the security of the constitution before citizens and the polity suffer irreversible damage. Terri Schiavo's survival depends on Gov. Bush's faithful execution of this responsibility, and the survival of American self-government on the willingness of all those in a like position to faithfully execute the duties of their high office."

Elizabeth Farah: "Gov. Bush, you have the right to exercise your authority to save this woman's life. You have the authority to reject a corrupt judge's corrupt decision. Remember when the pharoah issued the order that all Hebrew male infants should be killed? What did Moses' mother do? She broke the law of the civil authority. She saved the life of her son. (...) Jesus says that yes, you will have many detractors – people who will revile you for doing the right thing, but you will be rewarded greatly by God."

I could go on, but it's too depressing.

Obviously, I am not a conservative, nor do I normally try to tell conservatives what I think they should do. But the vilification of judges, and incitements to disobey the law, are serious business. If I were a conservative, and had some credibility in conservative circles, I would think hard about the legal facts of the case, figure out what legal mistakes, if any, the judges actually made, and then try to convince my fellow conservatives not to blame the judges for the rest. If you think that in cases like this, we should require written evidence, or proof beyond a reasonable doubt, your problem is with the Florida legislature. If you think that artificial feeding and hydration should not be considered 'medical treatment', or that an estranged husband should not have the right to make decisions for his wife, ditto. In none of these cases did judges just "invent" the law; the legislators did. The judges did more or less exactly what we want them to: they applied the laws as written.

The rule of law matters. And maintaining the rule of law requires that we criticize judges, and urge people to defy them, only when they have actually done something wrong. If any of you agree, I think it's important to say so.

***

On to the law. The best source of information and quite balanced commentary is Abstract Appeal. Here are some of the crucial legal issues in this case, together with some relevant statutes and cases:

• When a patient has not executed a living will, and is not competent to decide whether to accept or reject treatment, how should such decisions be made? Florida law answers as follows (emphasis added):

  "765.401  The proxy.--

  (1)  If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

  (a)  The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;

  (b)  The patient's spouse;

  (c)  An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;

  (d)  A parent of the patient; (...) (goes on through various further options)

  (2)  Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

  (3)  Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest."

  That is: Florida law explicitly holds that, in a case like Terri Schiavo's, in which there is no living will, advance directive, or durable power of attorney, a decision to withdraw life-prolonging measures can be made on the basis of "clear and convincing evidence" of the patient's wishes. That was the standard used in this case. Judge Greer found (pdf) that there was 'clear and convincing evidence' that she would not have wanted a feeding tube, and his decision was upheld by the Second District Court of Appeal (pdf), and the Florida Supreme Court (pdf).

  Moreover, while Michael Schiavo asked the court to determine what his wife would have wanted, the statutes make it clear that as her spouse, he had the right to decide what she would have wanted even if her parents did not agree.

  It's also worth noting in this context that the US Supreme Court has upheld (in Cruzan v. Director) the right of states to use the "clear and convincing evidence" standard in such cases. From Justice Rehnquist's majority opinion: "In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."

  And the Florida Supreme Court has held the following (ht Abstract Appeal): "Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged."

• Does Florida law grant patients the right to refuse artificial feeding and hydration? Yes. From sec. 765.101 (emphasis added):
  

  "(10)  "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain."

  Recall that the statute cited in the previous section states that "a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent." This makes it clear that a proxy's right to make health care decisions for an incompetent patient includes the right to refuse or withdraw life-prolonging measures, including artificial nutrition or hydration.

• Do these laws apply to people in permanent vegetative states? Yes. Sec. 756.401, the statute governing proxy decisions referred to above, states that proxies are bound by 765.305, which in turn says the following:
  

  "(2)  Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:

  (a)  The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.

  (b)  The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal."

• What procedures are used to determine whether or not someone is in a persistent vegetative state? Answer:
  

  "765.306  Determination of patient condition.--In determining whether the patient has a terminal condition, has an end-stage condition, or is in a persistent vegetative state or may recover capacity, or whether a medical condition or limitation referred to in an advance directive exists, the patient's attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination must be documented in the patient's medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn."

  This procedure was followed in the original case (pdf) about whether or not to withdraw Terri Schiavo's feeding tube. (For discussion of the two doctors, see pp. 6-7.) In addition, there was a subsequent trial on the question of Terri Schiavo's medical condition. During this trial "the court heard testimony on separate days from the treating physician of Terry Schiavo and five board- certified expert physicians, two selected by the Petitioner, two selected by the Respondents and one selected by the court since the parties could not agree upon an independent fifth expert. This procedure was pursuant to the Mandate."

• Did the courts wrongly disregard Congress' intentions in declining to order Terri Schiavo's feeding tube to be reinsterted? I don't think so. Others have discussed this question in an earlier thread. So, to be brief: first, the law allows the case to be reheard de novo. It does not alter the standards for issuing temporary restraining orders. Those standards require that a case have a 'substantial likelihood of success on the merits'. The court determined (pdf) that this case did not.

  That the courts reached this decision is not surprising. The Constitution grants the Federal Government, including its courts, jurisdiction over certain matters; all others are the provinces of the states. Congress cannot decide to make something a federal issue when it is not one: it has no authority over non-federal issues under the Constitution. For this reason, while Congress could order a federal trial de novo, it could not expand the issues that that trial could legitimately consider beyond existing federal issues. The federal issues at stake in this case are quite limited: as far as I can see, all that are even remotely plausible derive from the fourteenth amendment ban on depriving persons of life, liberty or property without due process of law. Given the extensive legal history of this case, it would be difficult to argue that Terri Schiavo was being deprived of life without what one would normally think of as a lot of due process. One could also argue that the fourteenth amendment requires "substantive due process" (meaning, roughly: something above and beyond a series of well-run trials), but it would be hard to argue that she had some such Constitutionally guaranteed right that had been violated given the Supreme Court's decision, in Cruzan (linked above), that allowing feeding tubes to be withdrawn on the basis of 'clear and convincing evidence' of the patient's wishes is constitutional. (I can't help noting here that Andrew McCarthy of the National Review seems to have discovered the joys of substantive due process arguments.)

If anyone thinks of legal issues I should have addressed, arguments I missed, or mistakes, let me know below and I will update this. I should also say that Kevin Keith has a good post on Dr. William Cheshire's affidavit here.

Comments

[John Thullen]

Thanks for being a rock, Hilzoy, in the howling black winds.

[hilzoy]

I have no need of friendship; friendship causes pain.
Its laughter and its loving I disdain.

-- on reflection, maybe not. But thanks anyways ;)

[Jackmormon]

Light to bear on dark places? With every metaphor, thanks.

[Sebastian Holsclaw]

I do not think that the judge was correct to find contrary to the Guardian ad Litem's report that the evidence of Mrs. Schiavo's wishes was clear and convincing. The appeals on the issue ruled that the judge did not abuse his discretion, but that is a hugely permissive standard. And in fact the judge did not abuse his discretion, but in my view he still did not weigh out evidence to a clear and convincing standard.

I'm a believer in process, I believe that the process has been exhausted. But I'm not so wedded to it that I believe it is always right, merely that it is often the best we can do.

[felixrayman]

If a capital punishment case defendant were about to be put to death, and there were questions about his or her guilt, and you discerned that all the proper laws and procedures had been followed in sentencing the person to death, would that be the end of the question for you? I hope not.

I have said this over and over again, this is not a legal concern, it is a moral concern. Whatever the laws may be, let's be sure we are doing the right thing. If you think those things are synonymous...well, in the past I would wager you thought differently.

Were it to be decided that extraordinary rendition was legal, would that be the end of it? Is this a blog devoted entirely to legal issues? It seems that way lately. When I make a remark about the morality of a certain action, people quote from court decisions as though they were scripture.

That isn't what this is about, OK? This isn't one for the lawyers. I understand you may feel the need to play "gotcha" with our conservative friends, but really...that isn't what this is about.

[hilzoy]

Sebastian: I don't think that process is everything, and there are points in the legal record where I (IANAL etc.) can see deciding things differently, though more or less all of them strike me as points where I can see going either way, and thus not as legal travesties etc. But the smaller, yet still (I think) important point that I meant to be making was: whatever the problems with this whole episode, and God knows there are many, judicial activism does not seem to me to be among them; and whatever the horrible flattening sorrow the whole thing makes me feel, I do not feel horrified by the judiciary. And thus I am sort of baffled by the quotes I cited.

Felix: I wasn't trying to play gotcha; just to counter something that really worries me. I agree that the hard aspects of this are not about the law. But, again, this was meant to be a post on a smaller issue, namely: is any of this due to activist judges? And that is all about the law. If I'm right to say 'no', your way is clear: advocate new legislation.

[SomeCallMeTim]

This has nothing to do with "activist judges," and everything to do with the Republican song book. Their national security song is built around Soviet standards, so Islamo-scaries became one the truly terrifying enemies the US has ever faced. In judicial matters, they've always claimed "activism"; what else would they sing at this point? Moreover, they don't need to say anything more - as long as they conjoin "activism" to a result that didn't go their way, people will write their own story. And the Democratic Party will let them. (And, if we're really lucky, Beinart will write an article about how Dems need to come out against judicial activism).

[washerdreyer]

Speaking of "activist judges" and this case, Will Baude had a nice catch. His post doesn't cut either way as far as your original point goes, but Fried's Op-Ed strongly supports it. Also, if felixrayman's point above isn't non-responsive, as hilzoy charitably takes it to be, it is an argument that judicial activism consists of following the law when the law leads to conclusions that you think are morally wrong. This is, of course, the opposite of the cases which are prototypical of judicial activism.

[felixrayman]

If I'm right to say 'no', your way is clear: advocate new legislation.

Would you have said that to Rosa Parks with a straight face? I don't think you would have. I am almost sure you would not have.

People keep repeating the same argument, to the charge, "It isn't moral", they respond, "But it is LEGAL"!

That is a non-response.

[rilkefan]

How does one reply to the charge, "It isn't moral", except to say, "Is too!"?

[Jackmormon]

Felixrayman,

I mean no disrespct by this question, but it seems important here: what is the limit case of your principle of keeping someone alive? Does someone have the legal or moral right to commit suicide? Does someone have the legal or moral right to refuse life-saving treatment?

And then we get into mediated cases based on documents and testimonies, but the above questions seem the more basic.

[regina]

No felix, that is exactly right. If one disagreed w/ Rosa Parks, one could have lobbied to amend the Constitution to take out the 14th Amendment. got that? I certainly would not support it, nor would I hope, a majority of US citizens these days. But we are a nation of laws and we believe that in the process of drafting our laws, the correct result is reached.

If the 14th Amendment were w/drawn, I would be working hard to get it back. That is the structure under which our country operates. It seems that you want to remove to laws where they do not suit your personal purposes. Fine, but may I refer you to Robert Boldt's "A Man for All Seasons" where Sir Thos More is talking with his son in law Roper:

"
Margaret More: Father, that man's bad.

Sir Thomas More: There's no law against that.

William Roper: There is. God's law.

Sir Thomas More: Then God can arrest him.

Lady Alice: While you talk, he's gone!

Thomas More: And go he should if he were the Devil himself until he broke the law.

William Roper: So, now you'd give the Devil benefit of law!

Thomas More: Yes. What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes! I'd cut down every law in England to do that.

Thomas More: Oh? And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to caost, Man's laws, not God's, and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the wind that would blow then? Yes, I'd give the Devil benefit of law for my own safety's sake. "

Think on that for a bit, and try not to let your personal convictions, no matter how strong intrude. That's what judges, at least good judges do: they set aside their personal convictions and prejudices so that they can render a judgment that is in accordance with the law.

[felixrayman]

Does someone have the legal or moral right to commit suicide?

Legally? No, I think you can be prosecuted for that. Morally? Sure, go for it. I have no problems with that. But if you expect the state to help you, well, extensive paperwork might be involved.

Does someone have the legal or moral right to refuse life-saving treatment?

Morally? Sure. But when it comes to person A claiming person B doesn't want life-saving treatment...I would require a very high level of certainty before I could go along with such a thing. That's what we're talking about here. When you are talking about burning bridges, I counsel patience.

[Anarch]

How does one reply to the charge, "It isn't moral", except to say, "Is too!"?

Does not!

[felixrayman]

How does one reply to the charge, "It isn't moral", except to say, "Is too!"?

I have done more than claim what is being done isn't moral, I have laid out the assumptions I make, and I have detailed the conclusions I draw from those assumptions.

You could reply to that by stating which of my assumptions you do not share, or if I have made an error in logic when reaching the conclusions I have reached, you could point that out.

Or, you know, the "Is too"! thing can be fun also. Anarch has the right idea. This could go on for days.

[chris]

Well...as to the evidence necessary to withdraw treatment from someone who is incapable of expressing their current desire..."clear and convincing" means more than "her husband said." There were really three legitimate issues in this case; 1) the diagnosis -- which is fairly clear...the only Drs. who said she _may_ not be in a PVS were those asked in by her parents...all of the court appointed physicians concurred that she is, in fact, in a PVS, 2) is Michael Schiavo the legitimate surrogate decision maker -- this was upheld througought legal proceedings and, 3) would Terri Schiavo have wished for treatment to be stopped?...this goes to my first point -- the decision on that matter was made with testimony from several people and evidence (I haven't gone through all of the decisions that carefully yet...there are quite a lot of them) it wasn't simply left to Michael Schiavo to decide on his own.

Point being...the legal and ethical issues in this case are really quite clear. Precedents (Quinlan and Cruzan most emphatically) are there for these matters. Florida law is quite clear on the matter. So, in response to the question "Is it moral?" I say, yes, it is. I see the question as "should people be forced to live in such a manner if they wish not to or would reasonably be expected to wish not to?" My answer is no, they should not. Suffering is not something to be cherished nor continued unnecessarily when the person doing the suffering would wish it to end. What has been determined in this case is that, as best as reasonable people can tell, Ms. Schiavo would not wish this to continue. Something on the order of 41 or 42 judges (inlcuding appellate courts and the Supreme Court) have had a chance to hear this case in, I believe 10 different courts...I think the conclusion is reasonable.

[rilkefan]

I wasn't saying you were claimed this was immoral tout court, I was responding to your claim that - well, see above.

If I understood her correctly, katherine disagrees with your implicit consistency valuation.

Anyway, people here have of course disagreed with your premises.

Regarding suicide, what about people who are mentally incapacitated? Respectful of Otters argues I believe that essentially no one makes a reasoned judgement to end their life.

[felixrayman]

I see the question as "should people be forced to live in such a manner if they wish not to or would reasonably be expected to wish not to?" My answer is no, they should not.

That would be my answer also.

What has been determined in this case is that, as best as reasonable people can tell, Ms. Schiavo would not wish this to continue

I do not think that has been determined with a degree of certainty that would justify killing her. I do not think, in absence of more direct evidence, that such a thing can be determined by the facts available. I am willing to take the risk of keeping her alive longer than she would have wanted to avoid killing her earlier than she would have wanted. The former is by degrees of magnitude preferable to the latter, for me. If I must take risks, I will risk the former.

Which would you prefer risking?

[felixrayman]

Respectful of Otters argues I believe that essentially no one makes a reasoned judgement to end their life

From what I have seen of this world, I must sadly disagree with the Otters.

[liberal japonicus]

You could reply to that by stating which of my assumptions you do not share

felix
The assumption that I do not share is that the state can/should interfere with this decision. You feel it can. I and others have accepted that your position is a principled stand. However, when faced with a moral claim, we have to ask if, in real world terms, the distinction made can be delimited practically. I would suggest that in this case, it cannot.

The number of people in PVS suggests that this condition obtains far more often that we care to admit and I do not see how we can demand that people spend their time, energy and savings to maintain life in people with PVS.

Given that those with PVS do not have the normal sleep cycle patterns, but are essentially 'awake' 24 hours a day, you are demanding that round the clock nursing care be given to these people. I can understand how you believe that this is moral, but can we imagine it as a real life exercise?

If we were to take advantage of the outpouring of support, such that all those who expressed a desire that she be kept alive, how would we apply this to the 10,000 to 25,000 adults and 4,000 to 10,000 children who suffer from PVS in the US? While this may be the moral absolute you argue that it is, practically, how could we manage that? It seems, as a matter of practicality, the only workable option is to pass the responsibility on to the guardian after setting up safeguards.

I say this as someone who is very sympathetic to your position. But in this case, to take away the responsibility from the guardian is to empty the notion of responsibility of meaning.

There are two tacks to take against that. The first is to suggest that life is of such value that anyone who does not take the responsibility to uphold and preserve it deserves to have that responsibility taken away from them. I find that a hard argument to take given the way our society works on so many levels.

The second tack would be to suggest, as you have, that we just can't approach the level of certainty that we need to have (though you seem to have backed away from the notion of 100% certainty)

The question about suicide which you deflected goes to the heart of that. Given that people who attempt to commit suicide and are obviously 100% certain when they attempt it but often have second thoughts, your argument suggests that we have to take far greater steps to attempt to stop all suicides.

One further point. I have the impression that you view the feeding tube as a relatively simply procedure. I have no direct experience, but my reading has led me to believe that it is not the simple on/off mechanism that you seem to take it as. You claim to be willing to take the risk of keeping her alive. However, Michael Schiavo has been involved in this for 13 years. I believe that you saying that 'you are willing to take the risk' seems to underestimate the level of effort and energy that has been required and would continue to be required.

[rilkefan]

One reason I decided not to go into philosophy (after a summer course at Cornell as a high school student) was the horrible what-if questions one asks oneself when confronted with these issues. E.g., what if it turned out that, following some medical advance, being in a PVS made you immortal? Would the benefit (here assuming it's not worth than nothing) of being in that state outweigh the benefit of living a normal finite life? Would one be taking a risk to choose the latter?

[felixrayman]

I can understand how you believe that this is moral, but can we imagine it as a real life exercise?

If you want to argue that we would like to keep these people alive, but can't afford it, fine, make that argument. That hasn't been the approach most people are taking to the issue. If you want to bring up the question, "Given limited resources, how do we decide who lives and who dies", well, that's a good question to ask. Let's get it out in the open.

The assumption that I do not share is that the state can/should interfere with this decision

Whichever decision is made, the state is interfering with the decision. The state, is either sanctioning the killing of an innocent person under certain circumstances, or denying that right.

Given that people who attempt to commit suicide and are obviously 100% certain when they attempt it but often have second thoughts, your argument suggests that we have to take far greater steps to attempt to stop all suicides

I don't see that that follows from what I have argued. There is a difference between being allowed to make irrevocable mistakes and having irrevocable mistakes made in your name.

[rilkefan]

Ack - "not worse than nothing". I have a bit of a lisp occasionally - thought it was in my mouth but maybe it's in my brain.

OT: are there to be no more open threads on this site?

[Frank]

Felixrayman- I think your devotion to principle here does you credit. I would be fine with a new legal standard which required a written living will for anyone to be taken off any form of life support.

However, that is a new legal standard, applying it to current cases smacks of ex-post facto law to me. I am not a lawyer. Would you want to charge Tom Delay with murder for pulling the plug on his father? Certainly its ok to call Tom a murderer since he thinks pulling the plug on someone is murder.

Hilzoy- Since you seem up on the law and all would you mind checking out the Texas Futile Care law for me, please? You know the law Bush supported and signed, under which a 6 month old baby was put to death?

Keeping all these people on life support is going to be very expensive. Universal health care would be a lot cheaper. Still I'd be all right with it if Republicans really supported this stuff. Its less loathsome than most of what they do.

[liberal japonicus]

If you want to argue that we would like to keep these people alive, but can't afford it, fine, make that argument.

OK. There you go, knock yourself out. I'm not adducing other people's arguments to yours, so please do me the same courtesy. I frankly get creeped out by these bright lines that you seem to argue. Given the extensive court record and the timeline, I would not be using the words 'we should'. But that's just me.

There is a difference between being allowed to make irrevocable mistakes and having irrevocable mistakes made in your name.

But your argument is that we don't have the level of certainty in the case of Terrie Schiavo. Repeated requests to ask for a quantification of what level of certainty (you started out saying that we had to be 100% sure, IIRC) have not produced anything that I can see as being a guide for how to determine certainty. Until you can produce some sort of metric for determining certainty (note that O'Connor in Cruzan specifically noted that young people do not typically produce written documentation of what they want), this debate is meaningless because you assume the high ground of moral correctness without explaining how it works in the real world.

[Frank]

This is bugging me; what is the nazi term Bush used to describe people too handicaped to live? He meant to descibe how liberals feel about Mrs Schiavo (Karnak award anyone?), so clearly it descibes his attitude towards Sun Hudson; the six month old baby killed on his orders.

[felixrayman]

Repeated requests to ask for a quantification of what level of certainty (you started out saying that we had to be 100% sure, IIRC) have not produced anything that I can see as being a guide for how to determine certainty.

I'm categorically against capital punishment, no matter how many appeals are allowed. That should give you a hint.

[liberal japonicus]

felix, I have pretty much stayed out of this because this is obviously a strongly held opinion of yours and I don't presume to say that you are wrong. At some point, morals and ethics are personal responsibilities and I don't think it useful to judge the correctness of your point of view is, especially when it doesn't seem to have undergone a test of actual experience. But it seems that you are unwilling to explore the ramifications and the extensions of your position. If you are unwilling/unable to do this, there is nothing to talk about, as I can't discern at what point we part company. When you answer in analogies, it serves the undercut the suggestion of moral certainty that I and I think others have suggested is admirable.

I've been untouched by this problem personally, so much of this is me trying to understand what I would do if faced with a similar situation. If your contribution to this debate has the intention of convincing me that your position is correct, you have been singularly unsuccessful.

[GT]

Felix,

You say no one would have told Rosa Parks to just change the law.

Yet that's exaclty what happened. The laws were changed. Civil Rights legislation was passed.

Yes, protests and boycotts were the nmeasn to apply pressure to change those laws. And if suitable targets can be found I expect pressure to be applied by those wanting to change the laws.

But hilzoy's basic point stands. The courts followed, to the best of their abilities, the law as it stands today. If you think the result immoral you need to change the laws, not attack the judges.

[cleek]

If you think the result immoral you need to change the laws, not attack the judges.

all signs point to the fact that the Republican Circus isn't at all interested in actually changing the laws, but rather in making the most political noise about this, getting air-time for their catch-phrases and bogeymen and utterly avoiding doing anything to make sure this never happens again.

[Barry Freed]

hilzoy,

I wanted to tell you that your earlier post on this circus (maybe it was the initial one, I'm not sure) completely changed my mind with regard to artificial life support. For while I was and am in full agreement with you and so many others that it is a question of personal autonomy and that the courts have rightly decided this particular case, I always personally regarded the providing of water and nutrients to be separate from other medical interventions such as ventilators (respirators?) and the like. But your argument pointing out the importance of one's bodily integrity was totally convincing. And of course, it's not so different than the notion of personal autonomy (which is probably my primary value, anarchist that I am).

Where this matters to me personally is that in the past some close family members in discussing this issue have asked me to take the role of guardian should such such an unfortunate occurance should, uh, occur. I had to demur on the grounds that I felt very uncomfortable with regarding "food and water" as extraordinary medical interventions. My thinking on this was probably influenced by reading too many Nat Hentoff columns in the Village Voice back in the day. But hey, the voice had the best punk, hardcore and ska band listings for NYC so what could I do? I never did agree with his anti-abortion schtick though.

[Jesurgislac]

Cleek: all signs point to the fact that the Republican Circus isn't at all interested in actually changing the laws, but rather in making the most political noise about this, getting air-time for their catch-phrases and bogeymen and utterly avoiding doing anything to make sure this never happens again.

Exactly. While their base, the religious right, look adoringly at them and say "Wow, aren't they good men, being foiled by those evil judges and that horrible Michael Schiavo."

You know, I would really like to cite Felixrayman on my livejournal if I write a fourth post about this*: simply because he is the only person I have read so far who (a) doesn't think it's right to let Terri Schiavo die and (b) has been consistent in his values and (c) hasn't attempted to ignore the facts and (d) has argued his case without vilifying people who hold opposing views. Okay with you if I do, Felix? (I don't agree with you, but I like the way you think.)

*I don't know if I will. It seems to me that a vast amount of wordage has been expended over a matter which, properly, ought to have been a private family thing.

[Peter Clay]

One thing that surprises me in this whole controversy is that nobody is pointing out that many of the "culture of life" Republicans are advocates of the death penalty.

[Barry Freed]

Exactly. While their base, the religious right, look adoringly at them and say "Wow, aren't they good men, being foiled by those evil judges and that horrible Michael Schiavo."

No, you've got this one wrong. They're pissed. They wonder why W ran to *her aid and then slinked off with not a word about the entire affair to be said even on his Easter address. And as for Jeb, they wonder why he's gone all gutless on them and hasn't sent in State Troopers yet (goes for W too, where are the Federal Marshalls?) They're mad as hell now at their own. This really blew up in their face in a completely unexpected, and I must say from where I stand, delightful, way.

[Barry Freed]

To clarify, the extremist pro-life faction of the Republican base is pissed at the Bushistas non-action. A very large part of the Republican base, including many evangelical Christians is also pissed but for a very different reason. They don't like government meddling in what they rightly see as a very personal family decision. Like I said, most delightful indeed.

[blogbudsman]

Even as a moderate conservative, I would no more support the Feds storming Terri's bedroom than I didn't when Elian's bedroom was violated. Another steaming cow pile our Congress stepped in to was making a Federal Case out of a State Case with no body of law to support it. And given there are thousands of less reported situations like this in play on any given day, politicians better re-connect with their constituency. The possibility that a politician running for something can interfere with an extremely personal, gut wrenching family matter gnaws to the core of my existence.

[The Heretik]

I said this somewhere else previously:
Truth is Schiavo is not about Schiavo at all. So when she dies, the furor found in so called fundamentalists who have no respect for fundamental decency will move onto the next "cause" that serves their agenda.
The mask may change. The face of fear and control does not.
So I'm going to continue to write about this uber subject mostly in the new series Lost Soul
Fatigue in the face of the onslaught of fear is natural and expected.

Mostly it is expected by the fearmongers who will take advantage while we sleep. May we not wake to too many more nightmares. May we hold onto our dreams so our children will know light.

If anyone is inclined toward some amusement, Pop One of These! Only one per please!

Hilzoy, your passion and commitment keep me going. I feed on your flame. Thank you.

[Edward]

Here's an interesting new twist to all this:

[Tom] DeLay had just been re-elected to his third term in Congress in 1988 when his father, Charles DeLay, was severely injured in an accident. As the elder DeLay's vital organs began failing, the family chose not to connect him to a dialysis machine or take other measures to prolong his life, the Los Angeles Times reported Sunday, citing court documents, medical records and interviews with family members.

"There was no point to even really talking about it," Maxine DeLay, the congressman's 81-year-old mother, told the Times. "Tom knew, we all knew, his father wouldn't have wanted to live that way."

[...]
The Texas Republican also accused Schiavo's husband and the courts of "an act of barbarism" against Schiavo, who doctors say is in a persistent vegetative state (search).

DeLay's people are arguing that this is different from Terri Schiavo's case because of the degree of intervention needed to keep each of them alive:

"The only thing keeping her alive is the food and water we all need to survive. His father was on a ventilator and other machines to sustain him," said DeLay spokesman Dan Allen.

Overall, I'd say the law on all this could be more specific with regards to this last distinction. Does it make a difference that more machines would have been needed to keep DeLay's father alive? I think it does, but then I consider a feeding tube extraordinarily invasive and would only want it for myself if the prognosis for a recovery was really strong.

[hilzoy]

Edward: Florida law is already quite specific. From above: ""(10)  "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain."

I think DeLay's spokesperson's argument is completely implausible. If one is going to draw a line here, I would think ventilators and feeding tubes would be on one side, and all other medical treatment on the other. Both ventilators and feeding tubes are artificial ways of getting us to perform a function needed to survive. And the idea that there's a big difference between a ventilator, which allows people who can't breathe on their own to have the air they need, and a feeding tube which allows people who can't eat on their own to have the food they need, is bizarre. (Ventilators may be bigger than feeding tubes, but why should that matter? If for some reason one wanted to go in for that sort of distinction, I would have thought that the fact that feeding tubes have to be surgically implanted, whereas some ventilators don't, was more likely.

Barry and Heretik: thanks. One sometimes wonders... ;) And blogbudsman: a few days ago, I meant to say: hi; it's been a while; welcome back.

[Edward]

Edward: Florida law is already quite specific.

I saw that above hilzoy (awesome post again, by the way), but I guess my question is whether a combination of such procedures should weigh the decision one way or the other. The law suggests it shouldn't, but I agree with DeLays people (ewww...that hurt) that a ventilator and other machines are much more intrusive and do represent a very different quality of life. Again, I wouldn't want even a feeding tube in me, but I think there are degrees of intervention here and the law doesn't seem to deal with that, at least not satisfactorily to me.

[chris]

The law is, in fact, quite clear on the distinction between artifical nutrition and hydration and something like a ventilator as far as medical care goes...there isn't any difference. The Nancy Cruzan case in the Supreme Court estblished that artificial nutrition and hydration are medical treatments that are considered the same as any others and, therefore, may be refused even if they are life sustaining. The distinction Delay is attempting to make is a personal one, not a legal one.

You can the Cruzan decision here http://www.tourolaw.edu/patch/Cruzan/

Its a separate issue in the Schiavo case as to whether it was sufficiently established that termination of support was her wish.

[Barry Freed]

re. Edward and hilzoy's last comment:

Reflecting on the food/water vs. air dichotomy here it seems that a feeding tube is no less a technological intervention, i.e. a machine, than a ventilator. Just because a feeding tube may not be plugged into the wall (I honestly don't know) and doesn't go "ping" does not make it any less a machine, even though on account of its simplicity we may be blinded to that fact.

[chris]

Oh, and I forgot a point/question that I meant to offer. Why is it that many people debating this case/issue seem to think that death is the worst possible thing that can happen? A terrific take on the matter from The Rev. John J. Paris, a bioethics professor at Boston College and Jesuit Priest.

Here’s the question I ask of these right-to-lifers, including Vatican bishops: as we enter into Holy Week and we proclaim that death is not triumphant and that with the power of resurrection and the glory of Easter we have the triumph of Christ over death, what are they talking about by presenting death as an unmitigated evil? It doesn’t fit Christian context. Richard McCormick, who was the great Catholic moral theologian of the last 25 years, wrote a brilliant article in the Journal of the American Medical Association in 1974 called “To Save or Let Die.” He said there are two great heresies in our age (and heresy is a strong word in theology—these are false doctrines). One is that life is an absolute good and the other is that death is an absolute evil. We believe that life was created and is a good, but a limited good. Therefore the obligation to sustain it is a limited one. The parameters that mark off those limits are your capacities to function as a human.
http://www.msnbc.msn.com/id/7276850/site/newsweek/

[Barry Freed]

Edward:

How is a tube that punctures your skin and is inserted into your stomach less intrusive than a ventilator? You have been bedazzled by the whirring gears and humming circuits of the machine.

[hilzoy]

Edward: I dunno; to me, at least, feeding tubes are clearly more intrusive than those ventilators that don't require surgery. I mean, they have to make a hole leading to your stomach and put the tube in and so forth, which seems pretty intrusive to me. This strikes me as on a par with ventilators that require e.g. a tracheotomy, but a lot more intrusive than those that work using a sort of pressurized mask, with no surgery required.

[Edward]

I see I'm in the minority here, but to clarify my position, I need food and water, but I take them only intermittently (unless the water's provide by an IV drip, in which case, that's barely an inconvenience at all, relatively speaking). Perhaps an operation is needed to provide them to me, but that's a one time ordeal.

Ventilators and such, on the other hand, are working round the clock. I can have the feeding tube removed and still not die for what(?) ten days or so. I can't be taken off the ventilator for more than a few minutes. I'm literally a captive to the machine.

It's a matter of degrees for me. Eating and drinking are not as constantly essential as breathing. If a machine must breathe for me, I'd rather just go, unless, again, the prognosis is really good for a recovery.

I guess I'm assessing what would I be willing to tolerate for longer: assisted eating and drinking or assisted breathing? A lot depends on the details, of course, but assisted breathing is so constant, it would drive me nuts. Then again, isn't that what Christopher Reeves had? And he seemed able to deal.

OK, so I have this thing about breathing. Any disruption freaks me out. (Maybe I was suffocated in a previous life....probably by a whale.)

[tonydismukes]

I have done more than claim what is being done isn't moral, I have laid out the assumptions I make, and I have detailed the conclusions I draw from those assumptions.

You could reply to that by stating which of my assumptions you do not share,...

Excellent approach, felix, so here's where we differ in our assumptions. From a moral standpoint, I don't believe Terry Schiavo is alive, or has been for a number of years. Her corpse may still be breathing, but the entity known as Terry Schiavo is gone, along with her cerebral cortex. Without the ability to think, remember, or feel, or the prospect of ever thinking, remembering or feeling, you don't have a human being - just a body. At this point, I think the moral issues come down to how she and her husband wanted her body disposed of. If I was ever in that state, I'd want my wife to let my body go and get on with her life.

Of course, that's not how the law reads, but hilzoy already addressed the legal issues. I'm just responding to your questions on the morality of the situation.

[liberal japonicus]

Michael Vitez, who won a Pulitzer prize in 1997 for a series on end of life care, just started a blog on the Schiavo case, and I thought that he notes is quite interesting and he says that he is writing specifically about this on Sunday (in the Philadelphia Inquirer, I assume)

I can't speak for others, but I think that I underestimated the technology involved in the feeding tube, and I feel certain that those protestors who have been trying to sneak in food and water don't understand the technology.

[Freder Frederson]

The law suggests it shouldn't, but I agree with DeLays people (ewww...that hurt) that a ventilator and other machines are much more intrusive and do represent a very different quality of life. Again, I wouldn't want even a feeding tube in me, but I think there are degrees of intervention here and the law doesn't seem to deal with that, at least not satisfactorily to me.

Saying that a ventilator is more of a medical intervention than a feeding tube is just silly and shows our obsession with mechanical devices that make noises and have moving parts as being more intrusive and technological. The fact is that the technology to drag out someone's life for an extended period of time by using an artificial feeding tube like Terri Schiavo's has only been around since the 1970's, so it is a much more complex technology than the ventilator, which has been around in one way or another since the iron lung was invented in 1927.

In the hysteria of the last week some inconvenient facts have been buried:

1) The PVS diagnosis in this case is indisputable. Those who dispute it are hucksters, quacks and liars or deluded. Saying that CT scans don't provide enough detail leaves out the important "except in severe cases". Terri Schiavo's is an extremely severe case. Her CT scan shows that her cerebral cortex has been replaced by spinal fluid and her eeg is nearly flat. The subjective examinations of her cognitive abilities are backed up by indisputable objective evidence. There is no medical possibility of improvement, recovery, or cognitive functions.

2) The state court decisions in this case were not made by some out of control unelected lifetime appointed judges. Judges in Florida are elected and stand for reelection. The trial court judge in this case is a conservative Republican church-going Baptist. Apparently he has been asked to leave his church because of his decision. Now the Schindler supporters are complaining that Michael Schiavo's lawyer contributed to Judge Greer's reelection campaign. See why electing judges is a bad idea.

3) Although the trial judge who heard the case in Federal Court was a Clinton appointee the Circuit Judge who initially dissented at the Circuit level was also a Clinton appointee. The eleventh circuit is one of the most conservative in the country and the en banc panel that denied the appeal included Judge Pryor, a recess appointment of Pres. Bush's, who has been filibustered by the Senate.

[Bernard Yomtov]

Let's be clear as to what some of these people, notably Bennett, are saying. It has implications far beyond the Schiavo case.

The claim is that the executive is not bound by court rulings-that the governor is free to ignore them if he feels they are unconstitutional and that the only possible sanction is impeachment.

This implies that constitutions, state or federal, offer no protection for the rights of individuals or minorities against the will of the majority.

Suppose the Florida legislature passes, and Jeb Bush signs, a blatantly unconstitutional law - reinstituting school segregation, for example. What Bennett is saying is that Jeb Bush may enforce that law, even if the courts rule it unconstitutional, and that the only recourse is impeachment. Of course since the law was popular enough to pass the legislature, impeachment is not a realistic possibility, so constitutional protections are nullified.

This is frightening.

[Freder Frederson]

What was interesting is that one of the talking heads shows had a Catholic priest (maybe a bishop) to clarify the Church's position on feeding tubes, and frankly I found it somewhat disturbing.

The Church's position, according to this priest, was that although a patient has the right to refuse the insertion of the feeding tube, once it is in, it is a sin to remove the tube, as then it becomes removing sustenance and hence euthanasia. So I guess it's a case of "Not damned if you never do, damned if do, Not damned if you don't".

[Freder Frederson]

The claim is that the executive is not bound by court rulings-that the governor is free to ignore them if he feels they are unconstitutional and that the only possible sanction is impeachment.

And who said we were being paranoid comparing the Republicans to the Nazis?

[John Thullen]

Hilzoy's first sentence in this post: "There are many aspects of the Terry Schiavo case about which I do not have clear views."

Sebastian's last sentence in his 1:01 am post: "But I am not so wedded to it (process) that I believe it is always right, merely that it is often the best we can do."

These two statements encapsulate why Obsidian Wings is the proper lens through which to view the issues of the day. The noble debate conducted by Felixrayman, Rilkefan, and others has been exemplary, too.

The discussion beats the utter vulgarity of the absolutely certain mobs and the unfailingly cynical political parties who have other bigger fish to fry than Terry Schiavo.

So, about now, you are asking yourselves, what's up with Thullen's vulgarity? Then, again, maybe you're not.

Think John Cleese.

And, finally, I was heartened to see that Terry Schiavo's brother politely asked the performance artists
surrounding the spectacle to keep the cacaphony down a bit.

[Edward]

Saying that a ventilator is more of a medical intervention than a feeding tube is just silly and shows our obsession with mechanical devices that make noises and have moving parts as being more intrusive and technological.

I can agree in a clinical vaccuum with that, but personally I don't see it as silly. I see more moving parts and noises as that much closer to being a Borg and that much further from being what I value about being human. Aesthetics count.

[hilzoy]

Bernard: "This is frightening."

Yep. Time permitting, I hope to say more about this later. I really did want to assemble the various statutes, so that anyone who has any credibility in their circles could examine the laws for him- or herself, decide whether or not judicial activism was an issue here, and respond accordingly.

But this is scary to me.

[Barry Freed]

Edward:

Don't be bamboozled. There's more to the meaning of life than the machine that goes "ping."

[dmbeaster]

The guardian appointed in 2003 to report to Gov. Bush on the Schiavo situation agrees with hilzoy. From page 23-24 of his report:

A legal analysis of the tens of thousands of pages of documents in the case file, against the statutory legal guidelines and the supporting case law, leads the GAL[guardian ad litem] to conclude that all the appropriate and proper elements of the law have been followed and met. The law has done its job well. The courts have carefully and diligently adhered to the prescribed civil processes and evidentiary guidelines, and have painfully and diligently applied the required tests in a reasonable, conscientious and professional manner.

Emphasis added for the benefit of Sebastian, who wrongly thinks that the guardian felt that the evidence did not meet the clear and convincing evidence standard. If Sebastian was referring to the 1998 guardian (Pearse), he concluded that relying solely on Michael Schiavo's testimony would not satisfy the clear and convincing standard, and that the court should grant the petition to withdraw the feeding tube only if there was additional evidence. Pearse was commenting on the Michael Schiavo petition prior to the trial, and the trial decision relied on additional evidence to meet the clear and convincing standard.

The governor's guardian was not using the standard of review that appellate courts are required by law to use, which is to defer to factual findings by trial judges when the evidence is conflicting (the standard of review is "substantial evidence" supports the decision -- not "abuse of discretion."). He was reviewing it independently.

Felix:

I am sympathetic (though still undecided) regarding your view that the decision should only be made if there is a written indication of the patient's wishes. Note that at least according to the governor's guardian (at page 25) in the Schiavo case, Florida's law allowing the decision to be made based on other evidence is the minority position. Most states require the directive to be in writing in order to be enforced -- your view is the current majority view in the states.

I have tried to find more information on-line about this legal question, but I suspect you would have to read an elder law treatise in a law school library to find a more detailed discussion re the state of the law as to what evidence must be presented before the court will order withdrawal of feeding tubes, etc.

However, the Schiavo case hardly represents the situation in which the Florida process has not worked. It is the increased possibility over the long run that a wrong decision will be made based solely on oral testimony that creates concern. The flip side is that a lot of people will be kept alive against their clear wishes, which they unfortunately did not reduce to a writing.

[John Thullen]

Barry Freed:

May I have your liver?

[rilkefan]

Freder: "And who said we were being paranoid comparing the Republicans to the Nazis?"

That's probably a big honking posting rules violation, along with the Godwin.

Not sure we're maintaining an ambiance welcoming to a wide spectrum of political viewpoints here. When felix is arguing the (or anyway a) conservative position...

[hilzoy]

rilkefan is right about comparisons to Nazis and the posting rules.

[Barry Freed]

John Thullen:

Well, other than the fact that I'm using it right now...

Also you might want to be careful asking that of me as being an Arabist by training. So please note that in Arabic liver=heart in all its metaphorical splendor.

[Edward]

Don't be bamboozled. There's more to the meaning of life than the machine that goes "ping."

That's the beauty of a living will. I get to define that for myself. ;-)

[Barry Freed]

And please excuse my mangled edit there. But my meaning should be clear.

[hilzoy]

Edward: yep, and while I disagree with you on this one, I will fight for your right to decide this for yourself ;)

Barry Freed: an Arabist? Cool. One of the funniest evenings of my life was spent trying to learn to make the 'ain sound. (Being tutored by the guy who would later become the love of my life, over scotch.)

[Barry Freed]

That's the beauty of a living will. I get to define that for myself. ;-)

Just stay away from the salmon mousse and you should be OK.

[dmbeaster]

Regarding the quoted comments in hilzoy's post and what is going on -- just more hatred and myth-making from the right-wingers.

First, the right-wingers quoted in the post are plainly seeking to foment hatred amongst their supporters -- its standard fare in their "culture war." Hate is so much more of a motivator than reason.

Second, since the facts inconveniently do not fit the hate-fest line, just make up total baloney about "judicial activism." Or to be more blunt, they just lie, and do so in order to insure the maximum degree of unreasoned hatred.

There is not a whole lot of difference between this behavior and that of holocaust deniers.

[Sebastian Holsclaw]

I was talking about Pearse, and the additional evidence (not originally presented to the guardian ad litem) ended up pointing both ways (with the evidence against removal being dismissed largely because of verb tense which the judge took as proof that the joke in question was told in Schiavo's teenage years despite the witness' testimony to the contrary). I believe that if the standard were the normal preponderance of the evidence standard (slightly more likely than not) that Mr. Schiavo should have won. But that isn't the standard. The conflicting testimony, combined with the original guardian's worrys about conflict of interest, combined with conflicting testimony from Mr. Sciavo at the malpractice trial suggest to me that the "clear and convincing" standard was not met. You can't really remedy it at the appeals court level without a de novo review (which is to say a review of the evidence). I am not intimately familiar with all of the appeals in the case, but most appeals courts will not engage in such a review except in very narrow circumstances. So long as the judge goes through all the right motions, the appeals court isn't going to review the trier of fact (in this case the trial judge).

[Barry Freed]

hilzoy: Damn, I wish I could remember but fairly early in my studies of Arabic (going on around 15 years now) a teacher once gave the funniest characterization of `ayn I've ever heard. It will probably come back to me in a week or so. I'm curious as to what the love of your life does for a living (when he's not loving, that is ;-)

On another note I wonder if anyone other than John Thullen got my reference. Ah, at least it's not as bad as when I used to sign off my comments with "I'm so shrill only the cynics can hear me" on Crooked Timber and Brad DeLong's and other erudite blogs where the thinkers and philosophers and historians and classicists play. And not once did my brilliant pun get noticed. Which is a fate far worse than moans and groans for any self-respecting punster.

[bob mcmanus]

Well, don't know anything much about feeding tubes, but do know some about ventilators, and they are pretty bad.
My mother spent about three months unconcious on a ventilator, and survived for two years after that. Her mind was fine, and her lungs were good, but she was always near breathing difficulties.

1)The bodily breathing system is quite complex. Not only the "pump" was needed, but moisturizers, oxygen, bronchial dilators(pills and treatments),tranquilizers, many antibiotics accompanied the pump.

2)"Ventilator dependency" is a terrible problem. You cannot be fully ventilated and breathe on your own...tho there are various levels of assisted breathing. To be ventilated, you have to relax and overcome your natural tendency to breathe. Once the unconcious reflex is lost, it can be lost forever. You "forget" how to breathe, which muscles to move in what way. This can lead to panic attacks, rapid or shallow breathing, too much carbon dioxide, forgetting to exhale. She was constantly cracking ribs from straining her thorax in unproductive ways. Doctors vastly prefer ventilators for very short periods or end-of-life situations only.

I hope to get hit by a truck. So many hard and long and slow ways to go anymore.

[hilzoy]

Barry F: well, I missed the reference.

I have always thought of the 'ain sound as the sound you'd make if you were trying to jump-start a motorcycle with your throat.

[Dantheman]

"I hope to get hit by a truck. So many hard and long and slow ways to go anymore."

It's never easy, regardless of what happens. While I haven't had to deal with a parent dying as yet, my 4 grandparents' deaths represented 4 very different situations:

quick and unexpected -- one grandfather had a stroke climbing the basement stairs, fell back down and was likely dead before he reached the bottom.

quick but expected -- the other grandfather broke a hip, and died while on the operating table to have it replaced. He had been told nearly 20 years previous to have a pacemaker inserted, and refused. He had been told he was likely not strong enough to survive the hip replacement operation, and wanted it anyway, rather than being confined to a wheelchair.

slow but unexpected -- a grandmother came down with inoperable pancreatic cancer, and went from being totally healthy to dead in 6 months, becoming so jaundiced that her very fair skin became dark gray.

slow and expected -- the other grandmother had senile dementia at least since around the time I was born. After her husband died, she was placed in a nursing home, where she lived 9 more years, breaking a total of 3 hips. My father visited her every week, and said he was never sure whether the weeks she did not recognize him or the weeks she thought he was his dad and asked why he grew a beard were harder.

Death is a hard and personal matter, and coming to grips with a loved one's death is a difficult process. I have largely been quiet on this issue here, for my suspicion is that none of the principals in the Schiavo case have entirely assimilated what her impairment means to them.

[Francis]

The "meaning of life" reference i get. the "so shrill" reference -- woosh, right over the head on a rainy monday morning.

SH believes there was bad decision-making on the part of the judge. there is really absolutely nothing to be done there; lots of juries find that the evidence in a criminal case has been established beyond a reasonable doubt, yet over 100 death row inmates have been released as factually innocent. How many LWOPers (life without parole) or 25-to-lifers are factually innocent?

Aha! Since some death row inmates are factually innocent we shouldn't have the death penalty, nor should T. Schiavo be allowed to die.

uh, no. The fact that some errors are made in the criminal justice system doesn't mean we stop all trials. And the fact that T. Schiavo's wishes cannot be known with perfect certainty doesn't mean we don't try to figure them out.

NPR's Day-to-Day program was just starting an interview with the state supreme court justice (missouri?) who wrote that court's decision in Cruzan. WHile I had to get to work, the part that i heard reflected well on judicial decision-making. Judges don't get to duck hard cases, whether they be questions of the applicability of the 14th amendment to gay marriage or the right to die. Conservative attacks on the judiciary are, simply, despicable.

[Bernard Yomtov]

hilzoy,

Was it the tutoring or the becoming the love of your life that happened over scotch?

[Anarch]

Since this is the most recent Terri Schiavo thread, I'll put this here: WTF?

But, given the vehemence with which he has been fighting to prolong Terri's life, it is a little surprising to learn that Robert decided to turn off the life-support system for his mother. She was 79 at the time, and had been ill with pneumonia for a week, when her kidneys gave out. "I can remember like yesterday the doctors said she had a good life. I asked, 'If you put her on a ventilator does she have a chance of surviving, of coming out of this thing?'" Robert says. "I was very angry with God because I didn't want to make those decisions."

This is the Grauniad so I'm taking this with a healthy pinch o' salt but... is this true?

[rilkefan]

That would be Robert Schindler, Mrs. Schaivo's father, btw.

[rilkefan]

That would be Robert Schindler, Mrs. Schaivo's father, btw.

[The Heretik]

When I carefully consider the curious habits of dogs
I am compelled to conclude
That man is the superior animal.

When I consider the curious habits of man
I confess, my friend, I am puzzled.
Meditatio
Pound

[felixrayman]

When felix is arguing the (or anyway a) conservative position...

Kind of scary, isn't it?

[Dutchmarbel]

Felixrayman- I think your devotion to principle here does you credit. I would be fine with a new legal standard which required a written living will for anyone to be taken off any form of life support.

But would a written will be enough to know the wishes with 100% certainty, if the patient is in a coma? In the Netherlands people find to their (or rather their families) dismay that you can make a living will about active euthanasia and discuss it with your doctor in case of cancer for instance, but that you still have to agree at the proper moment. Which means that people who suffer from braintumors, or are in a coma, mostly are NOT euthanized and can have a prolonged struggle with death that is unanticipated for the family members.

So if you want to be 100% certain you can only follow the living will when the person writing it is still capable to decide wether the will should be executed.

[chris]

"I have tried to find more information on-line about this legal question, but I suspect you would have to read an elder law treatise in a law school library to find a more detailed discussion re the state of the law as to what evidence must be presented before the court will order withdrawal of feeding tubes, etc."

The majority decision in the Cruzan case in 1990 (written by Justice Rehnquist) established, in part, that the state was "to apply a clear and convincing evidence standard, which is an appropriate standard when the individual interests at stake." You can find a link to the Cruzan case in an earlier comment of mine on this thread. If you read a bit of the Cruzan decision, I think you'll notice the similarities to the Schiavo case.

[rilkefan]

"When felix is arguing the (or anyway a) conservative position..."

"Kind of scary, isn't it?"

No, good on you - conservative positions should be argued. My fiancee needles me a bit when I say, 'I read a conservative today who suggests that foo', but everyone needs to test their ideas.

[moe99]

Here's some information on the problems w/ feeding tubes from a poster on this new blog:

http://terrischiavosaga.blogspot.com/

"...Let me give my example.

We have a son who was a "shaken baby" when we adopted him and he has multiple and severe disabilities and brain damage. He lives at home with the family, he is a highly valued and deeply loved member of the family. He attends school and he gets his medical care through one of the children's hospitals consistently ranked best in the world.

He receives all of his nutrition and hydration through a feeding tube, a special kind called a "G-J" tube. The tube needs to be changed (a medical procedure done in the hospital) every few months. Every time it is changed he suffers at least a week to two weeks of "adjustment period" during which he is very sick, vomiting, pain, distress, discomfort, etc.

Doctors/scientists have come up with a "formula" for the amount of food (quantity) and fluids he should take in over a 24 hour period for optimum nutrition and hydration. If he takes in this amount, he is well-nourished and well hydrated and all his electrolytes are at proper levels.

However, if he takes in this amount of food, his other systems cannot process it well. He becomes severely constipated. He has extreme pain and discomfort. He vomits. Then, he gets rashes and skin break down from the vomit, he risks aspirating and getting pneumonia (which has happened to him more than once) and other complications. THis is true no matter what we have tried, in consultation and under the supervision of the best hospital and some of the best doctors in the world. It doesn't matter if we change the type of food, the rate at which he takes it in, or any other potential variables etc. His system just cannot handle it and he is in pain and miserable.

However, if we give him less than this amount, he is peaceful, relaxed, interactive and happy. He is comfortable. He has some joy and pleasure in his life. But at the same time, if he is not getting this full amount of feeding and water, he is very slowly getting malnourished and dehydrated. His electrolytes get out of whack.

While we are confident that we will NEVER "turn him off" his feeding tube - That is not a consideration or option - every single day we are faced with decisions about whether or not to give him the full recommended amount of food and water and watch him suffer in pain and discomfort, or give him less and allow him a day of pleasure, joy and comfort. EVERY SINGLE DAY we have to make these decisions.

THese are the types of decisions that face people caring for a child or a sibling or a parent or a spouse with multiple, complex, multi-system disabilties. THey are rarely simple or straightforward or one-size fits all, or make-it-(the decision)-once-and-be-done-with-it.

My point is that sometimes you can have complexities in life where two standards that you hold equally dear are in conflict with each other and then what do you do?

For example, in the scenario above - one I live with every single day - we have a standard of valuing life above all else and providing the absolute best in terms of care, nourishment, etc to each of our children including the one I was speaking of. We also have a standard of doing everything possible so that our children can be free of pain, comfortable, have joy in their lives and the ability to interact at their fullest potential with the people and world around them. And yet the feeding tube and related issues for this child put those two sets of standards or values into conflict on a daily basis. If we "live by" one set of standards every moment, every day in his care, we are neglecting or denying the other set of standards and if we "live by" the second standard, we are compromsing the first.

So how do you respond to situations that are not so clear cut, not so black and white, situations where two closely held values are in conflict and you cannot possibly do both? People do face Sophie's Choice situations in the real world every day.

These are complex and excruciatingly difficult situations and each person and family needs to search their own heart and soul and support system (extended family, church, medical professionals, etc) to assist them in making the decision that is right and best for them for that day - when you are dealing with these life and death situations, you revisit these decisions EVERY DAY. You don't just make it once and it is done with.

These are not decisions to be made by Congress, politicians or the courts.

The thing that I find so disturbing in the last week is the political grandstanding and posturing of the politicians from Governor, the President, and members of Congress for this one case while AT THE VERY SAME TIME they ALL are making decisions that will ADVERSELY impact hundreds or thousands of other people who need the kind of care, feeding tubes, etc that they claim they want to preserve for Terri, yet they are cutting it off for other people. Why is that? For example, the case of Sun Hudson in Houston is so disturbing to me and yet no one is talking about it. Perhaps if I were his parent, I would want the life support discontinued, but the point is -it should be the parent's decision, not a law called "Futility of Care" . . . . . . unless we are going to agree as a society to impose that standard on ALL citizens not just the poorest....."

[travis]

Sebastian:

I'm wondering from your comments, do you think this is a case of judicial activism, or simply a case of judicial error (in applying the evidentiary standard to the facts)?

[dmbeaster]

chris:

Thanks for the Cruzan cite, but I was trying to get more information on the specific question addressed by felixrayman -- laws requiring the patient's directive to terminate care to be in writing vs. based on oral testimony about the wishes of the patient.

Cruzan discussed two question, and made it clear that Florida's current laws as applied to Schiavo are constitutional, but does not address the writing vs. testimony question. Cruzan decided: 1. Is there a constitutional right to refuse medical treatment? Held, yes (with only Scalia disagreeing but not dissenting since he agreed with the result). 2. Did Missouri law, which was preventing the parents from withdrawing feeding tube from their pvs daughter, impermissibly restricting exercise of that right? Held, No (5-4). Missouri law permitted the decision based on oral testimony, but required clear and convincing evidence to enforce that decision for the pvs patient. The Missouri Supreme Court had held that the evidence was insufficient, and the appeal was primarily about whether this evidence standard was too restrictive.

My understanding is that in Cruzan, there was another trial in which much more evidence was permitted, and the medical care was ordered withdrawn.

[chris]

dmbeaster --

I think your understanding of the Cruzan case is essentially correct. And thats the thing, I don't think there are laws on the books right now that specify that something has to be in writing in order to withdraw or withhold care. I could clearly be wrong as I don't have a thorough knowledge of all laws in all states...but I'm unaware of such a law. If someone has a durable medical power of attorney, for example, they may not have written down their wishes but that person would be empowered to make decisions on their behalf. (Granted, I'm making the hopefully erroneous assumption that someone would enact a power of attorney without also writing a living will of some sort...but still, the idea is clear I think.)

I think its also evident that oral testimony alone could rise to the level of "clear and convincing" especially if there isn't significant disagreement amongst various parties.

My point being that I think requiring something to be written might well be considered too high a burden to meet since the vast majority of people don't write down their wishes. It would tend to impede autonomous decisions more than it would protect people, on the whole. The state has an interest in protecting/preserving life...but that is often not found to outweigh an individual's right to make decisions for themselves. What the Quinlan and Cruzan cases made abundantly clear was that a surrogate is still carrying out the wishes of the patient and regardless of the patient's capacity to declare their own decisions, their autonomy is still the driving force.

[cleek]

"When felix is arguing the (or anyway a) conservative position..."

what exactly makes his a "conservative" position ?

i can see how it's might be a Radical Republican position (but that's because DeLay et al have adopted it for their own ends). but "conservative" ?

[dmbeaster]

Sebastian:

Your summary of the evidence from the trial is not very accurate -- hilzoy has already linked in her post to Abstract Appeal which is an excellent source for the primary source materials regarding the evidence in the case.

It is notable that the governor's guardian concluded in 2003 after his de novo review of everything that the evidence supported the result under the clear and convincing evidence standard (he also re-interviewed some of the witnesses, so he was not limited to the cold record). I am sure that if there was something credible to the contrary in the record, he would have put it in his report.

One point in your facual summary regarding conflict of interest. The 1998 guardian (Pearse) omitted from his report Schiavo's willingness to divest himself of any right to inherit from his wife, and also omitted the same conflict of interest concerns for the parents (urging Schiavo to divorce so that they would then inherit). His errors are discussed in greater detail in the 2003 guardian report. I would not put too much reliance on Pearse's work.

[Sebastian Holsclaw]

"I'm wondering from your comments, do you think this is a case of judicial activism, or simply a case of judicial error (in applying the evidentiary standard to the facts)?"

I don't know. I tend to suspect judicial error rather than activism as a general principle of analyzing decisions unless I can see a long history (like with Supreme Court justices). Here I would be unshocked to find that a judge could let his feelings about living in that state if a medical disaster happened to him strengthen the pro-removal evidence a touch in his mind while weakening the status quo evidence. (Please note that is 'unshocked'. I am not actually imputing any particular motive to the judge.) But the evidence as presented did not provide a clear and convincing answer to what Mrs. Schiavo would have wanted. At most it provided a strongish hint or a weight of the evidence understanding, but not a clear and convincing understanding.

[Freder Frederson]

And who said we were being paranoid comparing the Republicans to the Nazis?"

That's probably a big honking posting rules violation, along with the Godwin.

I will defend my statement. When Republicans seriously argue that the legislature and executive not only have the right but the duty to ignore and defy rulings of the courts that they don't like they are advocating tearing apart the rule of law. The Nazis did not take over in Germany by overthrowing the government but by slowly destroying from within. Ignoring the courts is the first step towards fascism. Already the Bush administration is getting too close to this line with its reaction to the illegal combatant decisions but for serious commentors to advocate openly defying the courts is does justify the use of the term "Nazi".

[Slartibartfast]

Uh, Freder, I hate to break this to you, but: there was just a wee bit more to Nazis than suggesting defiance of rightful authority. Now let me get back to polishing my jackboots.

[rilkefan]

By that logic you could say that it was fascistic of the mayor of SF to issue marriage licences to gays.

Plenty of other historical examples available that don't include the association of genocide to in large part honorable people just pretending to scratch the surface of authoritarianism.

As euthanasia of the mentally disabled was a part of Nazi policy, you'll be comparing me to a Nazi next.

[Anarch]

Now let me get back to polishing my jackboots.

Your brown shirt is in the wash, sir. Shall I fetch the black one with the nice swastika trim?

[SomeCallMeTim]

Comparisons to the Nazis are right out. But it's worth remembering that, "Nobody ever expects the Spanish Inquisition."

[rilkefan]

"Shall I fetch the black one with the nice swastika trim?"

Glad to hear you're not one of those Stalinist anti-Nazis.

This is ruining my post-lunch wedding-cake-testing calorie glow.

[Slartibartfast]

Shall I fetch the black one with the nice swastika trim?

And my galoshes; I've got Frenchmen to trample, and that can get messy.

[Freder Frederson]

Uh, Freder, I hate to break this to you, but: there was just a wee bit more to Nazis than suggesting defiance of rightful authority. Now let me get back to polishing my jackboots.

Yep, also included things like detention without charge or trial, institutionalized torture, extreme nationalism, denigrating and ignoring international opinion, increasing militarism, using propaganda to demonize minority groups.

[Slartibartfast]

Are you being funny on purpose, Freder? Because it'd be really tragic if this were unintentional.

[Sebastian Holsclaw]

"When Republicans seriously argue that the legislature and executive not only have the right but the duty to ignore and defy rulings of the courts that they don't like they are advocating tearing apart the rule of law."

Cough. Elian Gonzalez.

[JWC]

Feeding tubes are placed surgically. You don't just "dump" water and pureed food in them, there are special formulas that often require adjustment. Fact is, prior to this fairly recent technology people in a coma or PVS state routinely died within a couple of weeks. Normal, natural. It is unnatural to keep someone alive for years with a feeding tube.

[SomeCallMeTim]

SH:

How was Gonzales anything but the application of black letter law? I didn't follow it that closely, but wasn't there a controlling treaty and a rejection of cert.?