I haven’t blogged the Terry Schiavo controversy. There is something about it I find distasteful. I’ll admit I’m squeamish about dealing with severe disabilities, especially mental ones. I find offensive all the public attention to the private sorrow surrounding a woman in such terrible circumstances; and everyone is so certain of his position in an area where such certainty isn’t really merited.
That said, this has now become not only a public issue, but a national one, and I’ve thought about it a lot. And so I’ll share my thoughts.
How one analyzes this situation, first of all, depends a great deal on the facts. And the facts are in dispute with respect to her diagnosis, her prognosis, and her wishes.
Michael Schiavo, her husband, says she is in a “persistent vegetative state,” has no prospect of substantial improvement, and unequivocally expressed a wish to be allowed to die in such a circumstance. The trial court found this to be her wish, and found that it was so by “clear and convincing evidence,” which requires more certainty than an ordinary civil trial, where one can win with a “preponderance of evidence,” i.e., slightly more than 50 per cent, but less than a criminal trial, which requires proof “beyond a reasonable doubt.” See a complete legal timeline here. The trial court also found that she had no realistic hope of recovery, indeed, that much of her thinking brain has been replaced by spinal fluid.
Her parents and the opponents of the court decision to remove the feeding tube, content that she is not dying, shows some signs of consciousness, has been neglected for many years, and would very likely improve if treated aggressively. They also question whether she ever expressed the wishes that Michael Schiavo claims she did. A good example is here.
If what the trial court found to be true is in fact true, and Terry Schiavo is in a persistent vegetative state, there is no chance of restoring her to any form of conscious functioning, and it was her clearly expressed wish that in these circumstances she not be kept alive by artificial means, I believe, and I think most would agree, those wishes should be followed, and certainly the courts should not interfere, and even less should Congress do so.
The trial court applied the “clear and convincing evidence” test and found Terri’s wishes are not to be kept alive “hooked to a machine.” Although a feeding tube is not literally a machine, the distinction is one without a difference in this case.
The appellate courts will only disturb the findings of a trial judge on the facts if there is no substantial evidence to support it. Such findings are very rare. Although there were hearings on alleged additional facts, none has been shown to change or negate the ruling of the trial judge. You can read the trial judge’s ruling here (it’s a .pdf file).
Might the judge be wrong? Yes, but both sides have been well-represented, and the matter has been exhaustively appealed. Having read the opinion, my conclusion is that although something less than systematic, it showed a clear grasp of the fact and the basic legal rules on this issue, which make sense.
What is going on here? Several things, I think:
- The parents and their lawyers have been extremely persistent. Michael Schiavo lived with them for a long period of time. The trial court suggests that after Michael received a malpractice settlement he and Terri’s parents had a falling out over money, the parents wanting a share of the settlement.
- The anti-abortion movement has adopted this case as a cause celebre, either to advance its agenda or to use the case as a symbol of what they believe to a “culture of death” growing in this country. One adviser to the parents, for example, is Randall Terry, who made a career of organizing civil disobedience demonstrations at abortion clinics. Sincere or not, these folks have concerns that go way beyond the details of this one case.
- As a result of publicity and press coverage, millions of sincere Christians and other people committed to life believe the facts of the case to be much more in line with what the parents believe than with the court decision. If Terri Schiavo really were saying words, were responsive to contact and communication, and there were a body of serious medical opinion that said she could improve, removal of food and water, even if administered by tube, would be, as these folks believe it to be, morally questionable, and the rhetoric comparing her situation to that of condemned murders, who receive exhaustive state and federal review of their cases, would have some merit.
- Many have come to mistrust the judiciary. As our political system has thrust unpopular issues upon the courts, and more and more the courts have accepted the right to decide not just what the law says, but to find in the law what they think ought to be there, the level of distrust grows. For example, abortion never would have become so controversial if the states had been left to work the issue out legislatively; because unelected judges found an unexpressed penumbral “right to privacy” in the Constitution, to strongly held religious views about the morality of abortion is added a belief that judges are legislating by finding in the Constitution things that aren’t written there, that the majority of people does not agree with. How easy it is, then, to believe that Judge Greer in Florida is a thoughtless, life-destroying ogre rather than a trial judge trying to find the true facts and apply the written law to a difficult case.
Unless their motives are wholly mercenary, which I don’t believe. I can’t fault the parents. Parents cling to hope, and believe what they hope is true to be true.
I can’t fault those who sincerely believe a great injustice is being done for their concern about the case. Even a gravely disabled person is a human being. In an age where the fate of many is to be over-treated at the end of life, this case has a very poignant personal impact.
The suspicion of the judiciary is also well-founded. The recent decision on execution of minors is anti-democratic, inconsistent with past jurisprudence, and typifies a judicial departure from finding the law to making the law.
If, however, some in the pro-life movement are using the misery of a severely disabled woman and her family as a cynical ploy to obtain partisan advantage, their conduct is sleazy and opportunistic. Unfortunately, there are grounds to believe that this is the case.
Convinced as I am that doctors should never kill, and the resort to intentional “euthanasia” of human beings is beyond the pale, I am also convinced that keeping a person with no hope alive by artificial means (even a feeding tube, which is not a machine the way a respirator is), against their wishes, is also wrong.
I also believe that federalizing this issue is a bad precedent. True, if I believed the state of Florida was conniving in wrongfully killing Terri Schiavo, I would probably want the Feds to take a hand. However, when Congress intervenes in a single case, even a life-and-death case, our federal system, which is even now an important thing to preserve, suffers.
Update: changed "equally wrong" to "also wrong." More accurate, I think.
Update 2: Gerard over at American Digest has a contrary view, set forth with the eloquence we've come to expect. Food for thought.
Update 3: My second thoughts, including admission of a critical error, here.