March 26, 2005

Second Thoughts on Terri Schiavo

I have been thinking about this case since my last post on it.

On reflection, I was wrong on one critical point. I wrote that the distinction between artificial life support (ventilators and so on) and the feeding tube was one without a difference.

On reflection, there is an important difference. Even if through a tube or intravenously, hydrating and feeding someone are qualitatively different than heroic measures (the paddles familiar from doctor shows on TV, dialysis, and so on). One must conclude that removing a feeding tube is closer to intentional killing than is, say, refraining from performing dialysis on a patient suffering from end-state kidney disease. It follows that removing the tube on what may well be (I haven't read the record) less than clear and convincing evidence is far more questionable, even if probably Terri Schiavo is in a persistent vegetative state in which most of us would not want to stay alive.

I remember when my wife's mother, who had Alzheimer's, died of lung cancer, my wife said she had been "gone" a long time before she died.

Two other points:

  1. Did Congress act wisely or well? Constitutionally, the last-minute intervention was unwise, because it passed a law dealing with one woman rather than one of general application, and invaded a subject matter traditionally (and wisely) left to the states. And yet--this case had become symbolic if only because of the publicity. It cannot be gainsaid that the congressional action was a gesture, even if it turned out to be symbolic, on the side of life. Whatever the political motivations, better to act on the side of life than against it.

  2. Once Congress acted, however, Judge Whittemore and the Eleventh Circuit, I think, got it wrong. A fair reading of the Congressional act was that the federal courts should consider the matter de novo. Even if ultimately the conclusion were to be that the act was constitutionally infirm, a new trial was not called for but merely a review of the record, and the record supported no action by the federal courts, those are not conclusions so obvious they should be reached in haste when a life, even a severely compromised life, was at stake. Therefore, I would have granted the temporary restraining order, so the matter could be fully briefed, argued and appealed. A respect for the intent of the legislative branch demanded at least that much. The balancing of the equities (certain death versus further delay, expense and inconvenience) supported a grant of emergency relief.

All in all, a sad case, in which no one comes out well. The parents' wishful thinking, Michael Schiavo's questionable motivations, Judge Greer's ruling on what seems to be flimsy evidence, the doctors' unjustified certainty about the "painless" death by dehydration, Congress's constitutionally suspect intervention, and Judge Whittemore's precipitous denial of emergency relief all were flawed.

"For all have sinned, and come short of the glory of God." (Romans 3:23).

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