Wednesday, March 23, 2005

A lot of people have asked me what I think about the Schiavo case. I've been avoiding it in general, but now that the case is now coming to an end (the 11th circuit denied appeal, and you can bet good money that the supremes aren't going to grant cert.), I'll put down a few general thoughts.

1) Everybody's motivation here is suspect
2) We get quite animated when we look at the possiblity of triage in health care, whether it is real or presupposed.
3) The question of who gets to make the choice in deciding to triage is just as difficult, yet important, as the decision of whether triage is acceptable. Should we care about the husband not being able to move on when the parents are more than willing to keep their daughter alive? In different cases, should there be a diminshed standard of tolerance for unlikelihood of recovery when relatives are not willing to pony up the money to pay for life support? Should it matter that the daughter may have told the husband that she would not have wanted to end up like this?
Mickey Kaus pointed me to NRO which had this interview with Professor Robert George dealing in part with this last question.
NRO: As you know, there's some question about what Terri Schiavo's wishes were or would be now. How much should turn on this question?
George: It is the wrong question. It is pointless to ask whether Terri Schiavo had somehow formed a conditional intention to have herself starved to death if eventually she found herself in a brain-damaged condition. ...[snip]
Even if we were to credit Michael Schiavo's account of his conversation with Terri before her injury — which I am not inclined to do — it is a mistake to assume that people can make decisions in advance about whether to have themselves starved to death if they eventually find themselves disabled. That's why living wills have proven to be so often unreliable. One does not know how one will actually feel, or how one will feel about one's life and the prospect of death, or whether one will retain a desire to live despite a mental or physical disability, when one is not actually in that condition and when one is envisaging it from the perspective of more or less robust health.
Consider the case of a beautiful young woman — an actress or fashion model perhaps — who is severely burned in a fire. Prior to actually finding herself in such a condition, she might have supposed — and even said, if the subject had come up in a conversation — that she would rather be dead than live with her face grotesquely disfigured. But no one would be surprised if in the actual event she did not try to kill herself by starvation or some other means, and did not want to die.

4) Regardless of all these points, involving the federal government is a questionable at best decision, and is a further signal of the hypocrisy of some of my republican allies professed concern for state rights. Take a look at the following thoughts by Charles Fried:

Congress's intervention in the Schiavo case is equally mischievous. It demanded that a federal court decide this issue without giving any deference to state law or the previous course of state court proceedings. This is exactly the sort of episodic federal intervention without regard for the integrity of state processes that plagued death penalty cases for years, and that Congress moved to end when it passed the Antiterrorism and Effective Death Penalty Act of 1996. And the real possibility now of the case bouncing back and forth between the federal district court and the federal appeals court, and maybe even back to state court, is just what Congress tried to shut down in death penalty cases.
For years now, Congress has more and more stringently demanded that federal court intervention be limited to cases where the state courts have acted not just technically incorrectly, but with egregious lack of reason. Whatever might be said of the Florida state court proceedings in this case, they certainly have not crossed that line, and indeed probably accord with what state courts all over the country have ordered or permitted for years in these difficult and agonizing cases.
Finally, the law passed by Congress on Monday was an obvious attempt - under the pretense of allowing the determination of federal constitutional rights - to delay the outcome decreed by Florida state law with the hope of making that outcome impossible. That is precisely the worrisome tactic employed with increasingly imaginative stays and orders of re-litigation in a number of federal courts, most noticeably the Court of Appeals for the Ninth Circuit, which covers nine Western states. And it is also precisely the sort of tactic that Congress sought to discipline in the Effective Death Penalty Act.

5) Finally, the mainstream media (MSM) has once again failed us. Some good examples here and here.

Well, those are my general thoughts. Hope you either enjoyed them, or stopped reading them a bit ago.

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